2024 (6) TMI 255 - AT - Customs

Refund claim with reference to duty paid - import of Ductile Iron Casting Manhole Covers, Frames Grates which were originally exported by them and returned back as rejects by their foreign customers on grounds of lack of quality certification - assessee claimed the refund on the ground that assessment during re-importation under Notification No. 94/96-CUS dated 16.12.1996 was not proper - benefit of N/N. 158/95-CUS dated 14.11.1995 - Majority order. HELD THAT - In view of the Majority decision, it is held that to file an appeal before this Tribunal, the matter was required to be referred to the Chief Commissioner of Customs in terms of the provisions of proviso to Section 129A of the Customs Act, 1962 and the Revenue has not referred the matter to the Chief Commissioner of Customs in terms of the provisions of proviso to Section 129A of the Customs Act, 1962. Accordingly, the appeal is not maintainable and the same is dismissed.

Summary

Issues Involved:
1. Refund Claim
2. Delay in Filing Appeal
3. Maintainability of Appeal under Section 129A(2) of the Customs Act, 1962

Summary:

1. Refund Claim:
The revenue appealed against the Order-in-Appeal No. KOL/CUS/CKP/626/2009, which allowed the refund claim for duty paid on re-imported 'Ductile Iron Casting Manhole Covers, Frames & Grates' that were initially exported and returned as rejects. The original authority rejected the refund claim, stating that the goods were initially exported under the DEPB scheme and assessed under Notification No. 94/96-CUS. However, the Commissioner (Appeals) allowed the refund, noting that the assessee did not receive DEPB benefits due to the defective nature of the goods and should not suffer a greater tax burden.

2. Delay in Filing Appeal:
The revenue's appeal was filed with a delay of 210 days. The Tribunal had previously condoned this delay as per Misc. Order No. M/262/KOL/2011, S/419/2011. The High Court of Calcutta directed the Tribunal to hear the matter, including the question of the appeal's maintainability due to non-compliance with Section 129A(2).

3. Maintainability of Appeal under Section 129A(2) of the Customs Act, 1962:
The Tribunal examined whether the appeal was filed in compliance with Section 129A(2). The Commissioner (Port) initially accepted the Order-in-Appeal on 09.02.2010. However, after the Commissioner (Prev.) expressed a different opinion, the matter was not referred to the Principal Chief Commissioner or Chief Commissioner as required by the proviso to Section 129A(2). The Tribunal, referencing the Hon'ble Delhi High Court's decision in Commissioner of Service Tax vs. Japan Airlines International Co. Ltd. [2015 (39) S.T.R 541 (Del.)], held that the decision to file the appeal was validly arrived at after due consideration and consultation.

Separate Judgment by Judge:
Member (Judicial) disagreed, noting that the Commissioner (Port) had initially accepted the Order-in-Appeal and later changed his view, which is not permissible. The matter should have been referred to the Chief Commissioner as per Section 129A(2). Consequently, the appeal was deemed not maintainable.

Final Decision:
In the majority decision, it was concluded that the appeal was not maintainable as the matter was not referred to the Chief Commissioner as required by Section 129A(2). The appeal was dismissed.