9911796707
TMI Blog1998 (9) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... on 27-6-1991. Since, however, the import licence did not have any balance and it had been sent for enhancement of value to the licensing authority on account of fluctuation in foreign exchange rates, the appellants did not lay claim to Notification 159/90-Cus. and cleared the goods on payment of duty. Later on, after enhancement of value of the licence they filed a claim for refund of duty in terms of the benefit of the said notification. The benefit has been denied by the lower authorities on the following grounds :- (1) Condition No. (b) has not been fulfilled inasmuch as they did not make a claim in writing to the Collector of Customs for exemption under that Notification. (2) They did not execute a bond or legal undertaking before a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he licence and DEEC book to cover the clearance of the goods in question. 2.2 Learned Advocate, therefore, prays that a similar view may be taken so far as the last issue is concerned and the matter may be remanded to the authorities to satisfy themselves about fulfilment of the other conditions of the Notification No. 159/90-Cus. 3.1 Opposing the contentions, learned SDR, Shri A.K. Agarwal submits that the notification lays down a specific condition that a claim in writing is required to be made to the Collector of Customs for exemption under the said notification and the importer is also required to execute a bond or legal undertaking before a competent authority. These conditions, according to him, are not directory in nature but are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 159/90-Cus. Viewed from this angle, submits the learned SDR, the condition No. (b)(i) is not of a directory character but of a mandatory character. Learned SDR, therefore, prays for dismissing the appeal. 4.1 In her rejoinder, learned Advocate Ms. Reena Khair submits that in the DEEC Book in Part C there are no specifications or technical characteristics given in respect of kraft paper. The only restriction given is that it should be kraft paper other than ivory board . It is not anybody s case, submits the learned Advocate, that the goods imported by the appellants are not kraft papers. Therefore, she submits that in so far as this particular case is concerned, examination of the goods would not have brought out anything extra than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty at the higher rate but for this notifi- cation. Consequently, we are of the view that the lower authorities should examine and determine whether the appellants have fulfilled the other conditions of the notification i.e. condition Nos. (a) and (c) to (g), have been fulfilled or not. If those have been fulfilled and there is sufficient balance in the DEEC Book and the import licence they should be extended the benefit of the said notification and consequently refund, if any, be granted to the appellants in terms of the aforesaid notification. Needless to say that refund claim will also be subject to the provisions of unjust enrichment, if any, in terms of Section 27 of the Customs Act, 1962. 5.2 The impugned order is set aside and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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