9911796707
TMI Blog2001 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... -3-1992. Subsequently they filed a Bill of Entry for home consumption on 25-3-1992 which was assessed to duty amounting to Rs. 80,94,219/-. They filed a refund claim on 22-1-1993 on the ground that the counter-vailing duty was not leviable on the Aircraft in terms of Notification No. 42/92, dated 1-3-1992. The Assistant Commissioner, under Adjudication Order No. 19/96, dated 2-7-1996, rejected the refund claim on the ground that the rate of duty applicable is the rate of duty in force on the date of payment of duty under Section 15(1)(c) of the Customs Act and that refund claim is also time-barred as it was filed after expiry of 6 months from the date of payment of duty. On appeal, the Commissioner (Appeals), under the impugned Order, rejected their appeal, holding that the appellants paid part of duty on 11-2-1992 after they had been issued with Customs Clearance Permit dated 3-12-1991 and Customs Department initiated a case of misdeclaration against them; that the date of payment of first instalment would be the date of payment of duty on imported goods as envisaged under Section 15(1)(c) of the Act; that the expression other goods in Section 15(1)(c) was obviously meant to cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the presentation of the Bill of Entry; that Bill of Entry was filed as per Order; that it is not on record that there was a request for permission to file Bill of Entry; that no procedure had been prescribed under the Customs Act for making payment under protest and as such no letter of protest was necessary; that challan dated 10-3-1992 clearly showed that the payment was made under protest; that although this endorsement was not made on first challan, the fact remains that duty was paid because the aircraft had been grounded; that in any case the Commissioner (Appeals) had not upheld the Order of the Assistant Commissioner on the ground of time-bar and the Department had not come in appeal; that the Revenue now cannot argue that the Commissioner (Appeals) should have rejected their refund claim on time-limit. He relied on the decision in the case of India Cements Ltd. v CCE, 1989 (41) E.L.T. 358 (T) wherein it was held that no form has been prescribed for payment of duty under protest. In this case a letter raising contentions against the levy of duty on the value of packing material was accepted by the Supreme Court as a letter of protest. Reliance was also placed on the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon the following decisions : (i) Shah Devchand Co. v. U.O.I. - 1991 (55) E.L.T. 3 (S.C.) (ii) Amber Woollen Mills v. C.C., Delhi - 1998 (102) E.L.T. 518 (S.C.) (iii) Union of India v. Apar Pvt. Ltd. - 1999 (112) E.L.T. 3 (S.C.) (iv) Garden Silk Mills Ltd. v. Union of India - 1999 (113) E.L.T. 358 (S.C.) wherein it was held that taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home consumption is filed. (v) Bharat Surfactants (P) Ltd. v. UOI - 1989 (43) E.L.T. 189 (S.C.) (vi) Dhiraj Lal H. Vohra v. UOI - 1993 (66) E.L.T. 551 (S.C.) (vii) D.C.M. v. UOI - 1999 (109) E.L.T. 12 (S.C.) Finally, the learned Counsel mentioned that the Order of Out of Customs charge is not a procedural matter as held by Madras High Court in the case of Best Crompton Engineering v. C.C., Madras, 1997 (93) E.L.T. 21 (Mad.) and it is not given to the officer to go back on the Order passed under Section 47 of the Customs Act. 5. Countering the arguments, Shri N.K. Bajpai, learned Advocate for the Revenue, submitted that the present matter is not a case of normal import and, therefore, the provisions of Sections 46 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill of entry subsequently are not material at all; that the counter-vailing duty is shown on Bill of Entry and there is no mention of protest thereon; the intention of protest should find some expression somewhere; that they themselves did not claim the benefit of the notification; that the Customs Act does not recognise the payment of Customs duty in part; that in any case the relevant date for determining the rate of duty applicable is the date on which the payment of duty was first made; that the ratio of decisions in Apar Pvt. Ltd. and Garden Silk Mills cases does not advance the case of the appellants as it does not apply to the abnormal situation of the present matter. In reply the learned Advocate for the appellants mentioned that a totally new case has been made out by the Revenue; that the Bond and Bank guarantee stand discharged the movement Bill of Entry was filed; that filing of manifest is not required in their matter as it is applicable under Section 30 to goods carried by a vessel or an aircraft; that the Revenue has not made any submissions on the applicability of Section 15(1)(c) of the Customs Act; that the decision in the case of Sarabhai International relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption, there cannot be a second Bill of Entry for the same purpose. The Bond was also executed by the appellants undertaking to pay duty if they failed to produce proof of re-export of the aircraft. The Bond even contained the undertaking that any amount due under the Bond from them may be recovered in the manner laid down in Section 142(1) of the Customs Act. We agree with the learned Advocate for the Revenue that the ratio of the decision in the case of Sarabhai International Ltd., applies to the facts of the present matter. The fact that the goods were cleared to a Free Trade Zone in the said case does not make any difference. In Sarabhai's case the goods were cleared for being used in the manufacture of goods in Free Trade Zone for export out of India subject to the condition that the importer shall pay, on demand, an amount equal to the duty leviable on goods as are not proved to have been used in connection with the production or packaging of goods (within the Zone) for export out of India. As the importer therein did not utilise the entire quantity of imported goods in the manufacture of goods within Free Trade Zone, the Supreme Court held that the importer was liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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