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TMI Blog2016 (4) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were perishable seems to be untenable, more so when FSSAI or any other agency did not declare the goods to be so. Further, even if this ground is taken for consideration, there is no evidence furnished by Revenue that the goods had exceeded their shelf-life. Therefore, Section 26(3) of the Customs Act, 1962 is clearly not invocable here. Attraction of Section 26A(1) of the Customs Act, 1962 -Held that:- as regards the ground of proviso 3 of Section 26A(1), revenue certainly has a point that an offence appears have to have been committed under this act as goods were re-exported on redemption fine and penalty. However, the provisions of Section 26A(1) apply to situations where the goods are capable of easily identified as imported and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid. The primary adjudicating authority rejected the claim of refund in terms of proviso 3 to Section 26A of the Customs Act, 1962 observing that no refund of customs duty paid on the imported goods shall be granted in case an offence has been committed at the time of import in respect of those goods under this Act or any other Act for the time being in force. 3. Commissioner (Appeals), on appeal filed by the respondent, set aside the primary adjudication order and granted the refund observing that the goods were not certified as perishable by FSSAI and therefore rejecting the refund claim on this ground under Section 26A(3) of the Act was erroneous. 4. Ld. Departmental Representative reiterates the grounds of appeal contained in Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty on the ground under Section 26A(3) of the Customs Act, 1962. Section 26A(3) of the Customs Act, 1962 states that No refund under sub-section (1) shall be allowed in respect of perishable goods and goods which have exceeded their shelf life or their recommended storage-before-use period. 11. that, adjudicating authority rejected the refund on the ground of proviso 3 of section 26A(1), however the appellate authority is silent regarding the said proviso in its Order-in-Appeal, whereas decided the case on the merit of section 26A(3) of the Customs Ad 1962. 12. that, it is found that Commissioner (Appeal), while issuing the order did not take any cognizance of the ground on which the refund was rejected by the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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