Custom, Excise & Service Tax Tribunal
C.C., New Delhi (Icd)(Tkd) vs M/S. Haldiram Manufacturing Co.P.Ltd on 12 February, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 12.02.2016
For Approval & Signature :
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No. C/50594/2015-EX[SM]
[Arising out of Order-in-Appeal No.CC(A)/CUS/573/2014, dated 03.10.2014 passed by the C.C.(Appeals), New Delhi]
C.C., New Delhi (ICD)(TKD) Appellant
Vs.
M/s. Haldiram Manufacturing Co.P.Ltd. Respondent
Appearance Mr. G.R. Singh, DR - for the appellant Ms. Prabjyoti K Chadha, Advocate - for the respondent CORAM: Honble Mr. R.K. Singh, Member (Technical) Final Order No.50581/2016, dated 12.02.2016 Per Mr. R.K. Singh :
Appeal is filed by Revenue against Order-in-Appeal dated 03.10.2014, in terms of which the refund claim of Rs.13,36,540/- was allowed by Commissioner (Appeals).
2. The facts of the case are as under:-
The respondent had imported red chilli chatka seasoning and magic masala seasoning (both for captive consumption) and filed a Bill of Entry. The duty was paid before the clearance of goods under second check procedure. Before clearance, it was observed that the clearance of the said goods required No Objection Certificate from Food Safety Standards Authority of India (FSSAI). Accordingly, an application was made to FSSAI for clearance of goods. FSSAI expressed its inability to issue clearance on the ground that the individual packs in which the goods were packed did not have the labelling of the contents. At this stage, the respondent requested for re-export of the goods, which was permitted on redemption fine and penalty. The respondent re-exported the goods after paying redemption find and penalty and sought refund of the duty paid. 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 Revenues appeal, which are reproduced below:-
The Committee of Commissioners met and reviewed Order-in-Appeal No.CC(A)/CUS/573/2014 dated 03.11.2014 and found that the subject Order-in-Appeal is not proper and legally correct on the following grounds (quoted verbatim):-
7. That the Commissioner (Appeal) failed to appreciate the legal provision under which refund was rejected, therefore ambiguous order may be set aside.
8. That the refund claim rejected by the Adjudicating Authority as per proviso (3) to Section 26A of the Customs Act, 1962. Proviso (3) to Section 26A(1) states that Section 26A(1) Where on the importation of any goods capable of being easily identified as such imported goods, any duty has been paid on clearance of such goods for home consumption such duty shall be refunded to the person by whom or on whose behalf it was paid if-
Provided further that nothing contained in this section shall apply to the goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force.
9. that, on being aggrieved with the order issued vide C.No.VIII/20/ICD/TKD/RFD/82/others/12 dated 02.12.2013 by the adjudicating authority the importer filed an appeal to the Commissioner (Appeal) against the said order.
10. that, Commissioner (Appeal) observed that the goods were not certified as perishable or otherwise by the FSSAI (Food Safety Standards Authority of India), so rejecting the refund of 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 Act, 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 authority i.e. proviso 3 of Section 26(1) of the Customs act, 1962 on the contrary he has taken reverse to Section 26A(3) of the Customs Act, 1962. Thus, it appears that the appellate authority has decided the case on a completely irrelevant ground.
13. that, on going through the foregoing fact, it appears that the Commissioner(Appeal) has erred to conclude the order, therefore the Order in Appeal may be set aside.
14. In view of the foregoing, Order-in-Appeal No.CC(A)/CUS/447/2014 dated 03.11.2014, passed by Commissioner(Appeals) is not legal & proper. Hence appeal is being filed against it.
5. Ld. advocate for the respondent states that there was no evidence that the goods were perishable and that once the goods were exported, duty paid was refundable.
6. Heard both the sides and perused the records. I find that the primary adjudicating authority had not rejected the refund claim on the ground of goods being perishable and therefore the stand taken by Revenue that the goods are 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) ibid is clearly not invocable in the present case.
7. 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, I find that the provisions of Section 26A(1) apply to situations where the goods are capable of easily identified as imported and cleared on payment of duty for home consumption. In the present case, it is not in dispute that the goods were never cleared for home consumption. Therefore, Section 26A(1) ibid is also not attracted in this case.
8. Thus, none of the two grounds of Revenue on the basis of which the impugned order is sought to be set aside is sustainable. Therefore, the appeal filed by Revenue is dismissed.
(R.K. Singh) Member (Technical) SSK -6-