2018 (9) TMI 329 - HC - Customs

Refund of Customs Duty paid which is otherwise exempt by way of notification - Section 27 of Customs Act - Exemption from payment of Customs Duty - N/N. 21/02/Cus, dated 01.03.2002 - import of plastic bags under the name GERBER - rejection of refund claim on the ground that the petitioner had paid the duty without demur and, therefore, that in the absence of any dispute being raised by them, when the goods were cleared, no order under Section 27 can be issued. Held that - The disputations between the parties in this case is more in the arena of factual circumstances than relating to forensic evaluations - It is now settled law by the Hon ble Supreme Court in Escorts Limited v. Union of India 1994 (2) TMI 74 - SUPREME COURT OF INDIA that in the absence of an objection being raised by the importer regarding the classification and the duty, at the time when the import is effected, normally the Authorities under the Customs Act would not be enjoined to issue any order under Section 27 of the Customs Act because there is no dispute raised and, therefore, there arises no reason for such an order - thus this is an issue that will require to be decided by the competent Authority at the first instance. These are essentially questions of fact, which cannot be considered here - it is now essential that a comprehensive view is obtained on all these issues at the hands of the competent Authority, so that the factual disputations can find resolution at the first instance. The 2nd respondent, the Deputy Commissioner of Customs (Import), is directed to reconsider the petitioner s claim for refund under Section 27 of the Customs Act, taking into account all relevant materials that may be placed before him by the petitioner - petition allowed by way of remand.

Summary

Issues:
1. Interpretation of duty exemption under the Customs Act.
2. Dispute regarding payment of duty under protest.
3. Rejection of refund request under Section 27 of the Customs Act.
4. Factual disputes between parties regarding submission of documents.

Analysis:
1. The petitioner claimed duty exemption for imported plastic bags embossed with the name 'GERBER' under a specific Notification. The Customs Appraiser did not permit the benefit of the Notification, leading to duty payment under protest due to time constraints.

2. The petitioner argued that they raised a dispute by submitting letters to the Appraiser under Section 27 for refund, which was rejected. The court noted that in the absence of an objection during import, authorities may not issue an order under Section 27. The petitioner's submission of letters was disputed by the Customs counsel.

3. The court emphasized that factual disputes, like the submission of letters and receipt by authorities, need resolution by the competent Authority. The Deputy Commissioner of Customs was directed to reconsider the refund claim, considering all relevant materials, including the disputed letters, and provide a reasoned decision under Section 27.

4. The court highlighted discrepancies in the dates of letters and bill of entry, which were considered factual issues beyond the court's jurisdiction. The petitioner was given the opportunity to establish the submission of letters with cogent evidence before the Deputy Commissioner. The court quashed the earlier order to facilitate a fresh reconsideration based on all relevant factors.

In conclusion, the judgment focused on resolving factual disputes related to duty exemption, payment under protest, and refund requests under the Customs Act. The court directed the competent Authority to reevaluate the petitioner's claim, considering all evidence and providing a reasoned decision in accordance with the law.