2009 (7) TMI 288 - AT - Customs

It appears from the records that the respondent had imported certain goods without payment of appropriate duty and, later on, exported the same within the period prescribed by the proper officer of customs. The import was made through the New Custom House, Mumbai and the export through the Custom House at Nhava Sheva. When the Custom House of import raised a demand of duty, the party took the stand that no duty could be demanded as the goods had been exported within the time prescribed by the department. Tribunal earlier remanded directing for appropriation of demand drawback as eventually exports made - above order of the Tribunal is directed against the Customs authorities in the New Customs House and is not addressed to any authority in the Nhava Sheva Customs House. Quantification of drawback of duty can be done at Nhava Sheva and the same cannot be done in the New Customs House. - Obviously, in this exercise, the Customs authorities at the port of import and those at the port of export should act in tandem. - In case the proper officer of Customs is faced with any insurmountable procedural difficulty in this matter, he can obtain appropriate orders from the appropriate superior administrative authority having control over both the Commissionerates. Tribunal s order should be implemented within 6 months

Summary

Issues:
- Jurisdictional objection raised by the appellant against the order passed by the Commissioner (Appeals).
- Implementation of the Tribunal's order dated 11-3-2005 regarding duty demand and drawback entitlement.
- Dispute regarding the proper authority for quantifying drawback of duty between New Customs House and Nhava Sheva Customs House.

Analysis:

Issue 1: Jurisdictional Objection
In the appeal filed by the department, the challenge was against the decision of the lower appellate authority. The ld. Commissioner (Appeals) had directed the original authority to implement the Tribunal's order dated 11-3-2005. The appellant contended that action under Section 74 cannot be adjusted against action under Section 28 of the Customs Act. The appellant also argued that the Commissioner (Appeals) exceeded jurisdiction by remanding the case to the original authority. However, the respondent's counsel pointed out that the appellant did not raise any jurisdictional objection earlier. The Tribunal emphasized that it was the department's liability to implement the Tribunal's order without reservation.

Issue 2: Implementation of Tribunal's Order
The Tribunal's order dated 11-3-2005 directed the Customs authorities to consider only the difference in duty payable and the drawback entitled under Section 74. The order was accepted by the department, and it was undisputed that the order needed to be implemented. The Tribunal highlighted that the Customs authorities at the port of import and export must act together to quantify the drawback amount and set off the admissible drawback against the duty demand. The Tribunal mandated the implementation of its order within six months from the date of receipt of a certified copy of the order.

Issue 3: Authority for Quantifying Drawback
A significant objection raised was that the Tribunal's order was directed at the Customs authorities in the New Customs House, while the quantification of drawback should be done at Nhava Sheva Customs House. The Revenue's appeal was centered on this objection. However, the Tribunal ruled that the objection should be overruled, emphasizing the need for both Customs authorities to work in tandem. The proper officer at the port of import was tasked with calculating the difference between the drawback admissible and the duty recoverable, with the New Customs House responsible for setting off the amounts. Procedural difficulties were to be resolved by obtaining appropriate orders from superior administrative authorities overseeing both Commissionerates.

In conclusion, the appeal was disposed of with the directive to implement the Tribunal's order promptly, emphasizing coordination between Customs authorities and the resolution of any procedural hurdles to ensure compliance within the stipulated timeframe.