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TMI Blog2010 (11) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... it has to be held that appellant is entitled to the refund of excess deposit of ₹ 6,01,721 - Accordingly the appeal is allowed - C/687/2008-SM(BR) - 1304/2010-SM(BR)(PB) - Dated:- 10-11-2010 - Ms. Archana Wadhwa, J. REPRESENTED BY : S/Shri G.K. Sarkar and Saurabh Yadav, Advocates, for the Appellant. Shri K.P. Singh, DR, for the Respondent. [Order]. - After hearing both the sides, I find that the appellant herein imported 372.28 MT of HMS and filed a Bill of Entry on 22-2-06. The goods were contained in eighteen numbers of containers, which were opened on 24-2-06 for examination. As per the certificate/report dated 24-3-06 issued by the Assistant Commissioner of Customs, CFS Ludhiana, the cargo did not match wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has not challenged the assessment orders made by the Customs and as such refund claim cannot be entertained. Accordingly, on above two grounds the claim was rejected by the original adjudicating authority as also by the appellate authority. Hence the present appeal. 4. After hearing both the sides, I find that the facts of the case are not in dispute. The Bill of Entry was filed, and assessed on the basis of the declarations made by the importer and on the basis of the invoice issued. However, it has undisputed fact that on opening the containers, the same were found to contain dust, mud and rocks etc., instead of the ordered HMS and re-rollable scrap. Admittedly, the duty was deposited by the appellant in the good faith that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of Trustees of the Port of Mormugao v. Union of India reported in 1993 (68) E.L.T. 39 (Bom.) has observed that it is now well settled that in case the duty is recovered in respect of items which are not even imported, then the bar of Section 27 of the Act will not be attracted. The Tribunal in the case of Honda Siel Power Products Ltd. v. CC, New Delhi reported in 2009 (240) E.L.T. 392 (Tri.-Del.) has held that refund claim in respect of short landing of goods cannot be rejected on the ground of time-bar in as much as the amount deposited by the importer are not attributable to goods imported. Similarly Tribunal in the case of Bansal Alloys Metals Pvt. Ltd. v. CCE reported in 2010 (251) E.L.T. 70 has held that the duty having been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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