9911796707
TMI Blog2014 (3) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid goods, having been manufactured by the petitioner company, the Petitioner Company had paid Central Excise Duty thereon. 4. By a letter No. BNM/FC/46/2011-12 dated 18th July, 2011, the Petitioner Company applied to Maritime Commissioner of Central Excise, Export Refund Branch, Kolkata-III Commissionerate for rebate of Central Excise Duty on the aforesaid goods, in terms of Notification No. 19/2004-CE(NT) dated 6th September, 2004, issued under Rule 18 of the Central Excise Rules, 2002. 5. According to the petitioner the petitioner made the aforesaid application for refund alongwith requisite proof of export issued from the office of the Commissioner of Customs, Kolkata (KPD/Haldia Dock) Port. 6. The foreign importer, however, sent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th July, 2011 and Rs. 7,518/- as interest. 12. The petitioner duly deposited duty of Rs. 92,391/- and Rs. 7,518/- as interest for which Customs Receipts Nos.28 and 57 were duly issued to the petitioner company. 13. The Appraiser, thereafter, passed an examination order dated 7th September, 2011 in respect of the Bill of Entry dated 26th July, 2011, recording that the petitioners had paid Rs. 92,391/- and Rs. 7,518/- being the amount equivalent to the amount of rebate of Central Excise taken at the time of export, and interest thereon. The goods were released by the Customs Authorities on 7th September, 2011 by a letter No.BNM/FC/87/2011-12. 14. The Petitioner Company informed the Commissioner of Central Excise, Kolkata-III Commissionerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods from their factory for export and they had further paid the same amount at the time of return of the goods into India, at the insistence of the customs authorities on the premises that they had claimed rebate of the Central Excise duty that had been paid. 19. On 23rd February, 2011 the petitioners appeared for a personal hearing before the Maritime Commissioner in connection with the proceedings initiated pursuant to the showcause notice dated 9th January, 2012. 20. By an order No. 313/MC-KOL-III/2011-12 dated 27th March, 2012, the learned Maritime Commissioner rejected the claim of the petitioner to rebate of Rs. 92,391/- on the ground that the application for rebate had initially been returned to the petitioners under cover of a le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duty equal to the export benefit availed at the time of export of the concerned goods. 25. Since export of goods had been made along with claim for rebate of Cenvat duty of Rs. 92,391/-, and the importer could not prove that rebate had not been granted by the Central Excise authorities, the amount along with interest was charged as customs duty. The goods were released on payment of such customs duty. 26. May be, at the material time the petitioners could not prove non-receipt of the claim for rebate and there was urgency in clearance of goods for which the petitioner paid the amount of the rebate claimed. Such payment was obviously made in the expectation that the petitioner would get the claim. If the claim had not been disbursed, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners, but duty realized on the premises that the petitioners had claimed rebate, the respondent customs authorities would be obliged to refund the amount realized through mistake on being satisfied that no rebate of Central Excise duty had actually been allowed. 31. An objection has been taken to the writ petition on the ground of existence of an alternative remedy of appeal. However, as rightly argued by counsel appearing on behalf of the petitioner, an appeal may lie from an order of assessment. The petitioners have no reason to be aggrieved by the order of assessment as the duty was assessed at nil. A writ petition would lie for seeking the relief of refund of an amount wrongfully realized, as the petitioners have no remedy of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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