Customs, Excise and Gold Tribunal - Calcutta
Paharpur Cooling Towers Ltd. vs Commissioner Of Customs, Calcutta on 1 August, 2001
Equivalent citations: 2002(150)ELT536(TRI-KOLKATA)
JUDGMENT
Archana Wadhwa
1. The dispute involved in the present appeals relates to the refund of Customs Duty paid by the appellants at the time of original clearance of the imported machine tools, vide Bill of Entry No.A-511 (CCI) dated 11.8.98. On receipt of the goods in the factory, they found that one of the items was not as per the Order placed by them. A Fax Message was sent to the Overseas Supplier on 17.8.98. Overseas Supplier agreed to supply the replacement spares. Independent Chartered Accountant's certificate confirming wrong supply of the goods was also procured. Thereafter, a Shipping Bill for re-exportation of the wrong supply of the goods was filed by them on 17.9.98. At the back of the Shipping Bill, an endorsement was made as "Goods examined. Identity established with the help of import documents; Bill of Entry No.AI-511 (CCI) dated 11.8.98." Thereafter, the wrong supplied parts were replaced by the foreign supplier and subsequently, sent to the appellants for which the Bills of Entry were filed by them and cleared on payment of duty.
2. The authorities below have rejected the Refund Claim of the appellant firm on the ground that wrong supply of the goods was detected at the importers' factory after giving Pass-Out from Customs Control for home-consumption; no endorsement has been made on the reverse of the Bill of Entry, neither any joint survey was requested for by the importer; at the time of wrong detection, Customs were not informed and all re-export action taken ex parte by the importer and the identity of the goods not established by the Customs at the time of re-export.
3. After hearing both sides duly represented by Shri P.K.Bhatra, learned representative for the appellants and Shri A.K.Chattopadhyay, learned J.D.R. for the Revenue, I find that there is a clear endorsement at the back of the Shipping Bill which is to the effect that identity of the goods has been established with the imported items under Bill of Entry No.A-511 (CCI) dated 11.8.98. As such, the said documents have not been taken into consideration by the original adjudicating authority. I also find that there are other collateral evidences to establish wrong receipt of the items in question and re-export of the same and re-import of the ordered items. All these evidences have not been taken into consideration by the original adjudicating authority as also by the appellate authority. Accordingly, I set aside the impugned Order and remand the matter to the Assistant Commissioner for fresh decision after taking into account the said documentary evidences produced by the appellants. Needless to say that the appellants would be given an opportunity to present their case, who would co-operate with the Customs Authorities. Appeal is thus allowed by way of remand.
4. Dictated in the open court.