Custom, Excise & Service Tax Tribunal
Cc, New Delhi vs M/S. National Research Centre On Bio ... on 25 November, 2011
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER BENCH
Customs Appeal No.14 of 2010
(Arising out of Order-in-Appeal No.CC(A)/Cus/I&G/209/2009 dated 1.10.09 passed by the CC(A), Customs House, New Delhi)
Date of Hearing/decision: 25.11.2011
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
CC, New Delhi Appellant
Vs.
M/s. National Research Centre on Bio Plant Technology Respondent
Present for the Appellant: Shri R.K.Verma, SDR
Present for the Respondent: None
Coram: Honble Mrs.Archana Wadhwa, Member (Judicial)
ORDER NO._______________
PER: ARCHANA WADHWA
Being aggrieved with the order passed by the Commissioner (Appeals), The Revenue has filed the present appeal. I have heard Shri R.K.Verma, learned SDR appearing for the Revenue. Nobody appeared for the respondents.
2. As per facts on records, the respondents had filed a refund claim of Rs.24,010/- against B/E No.901469, dated 12.02.2008 on the ground that the duty had been assessed for three packages against prior Bill of Entry and duty deposited in advance for Rs.45,982/-, but they received only two packages out of a lot of three packages. Duty which was required for two packages is Rs.21,972/-, hence, the respondents paid excess duty amounting to Rs.24,010/-. The said refund claim was rejected by the concerned AC, Refund on the ground that the respondents did not seek the reassessment of the relevant Bill of Entry by relying on the ratio of the judgement of Honble Supreme Court in the case of M/s.Flock India and M/s.Priya Blue Industries.
3. Being aggrieved with the said order, the respondents have filed their appeal before the Commissioner (Appeals). It was the importers contention that the Bill of Entry is filed under Section 46 of the Customs Act, 1962 by the importer of the goods. Generally, the importers file Bill of Entry after the delivery of import manifest. However, an importer is permitted under special circumstances to file a Bill of Entry prior to the delivery of import manifest. However, the filing of Bill of Entry prior to delivery of import manifest and payment of duty in respect thereof does not constitute the assessment of Bill of Entry. The filing of Bill of Entry prior to the delivery of import manifest and payment of duty in respect thereof is only and administrative process. The assessment of Bill of Entry is done prior to the clearance of goods for home consumption under section 47 of Customs Act, 1962. The fact that only two packages were cleared against the Bill of Entry after examination and receiving reports to that effect from the concerned agencies, indicates that the assessment under section 47 was only in respect of two packages and not in respect of three packages for which the Bill of Entry was filed and duty was paid. Accordingly, there was no ground for challenging the assessment by them. Therefore, the finding in the impugned order that they did not apply for re-assessment prior to clearance of the goods is incorrect and unsustainable.
4. The Commissioner (Appeals) has accepted the assessees contention and vide his impugned order, he has held as under:-
It is seen that in the subject case, the relevant Bill of Entry was filed under second proviso to section 46(3) of Customs Act, 1962, i.e. Bill of Entry was filed before the delivery import manifest. The filing of Bill of Entry under the said section does not constitute the assessment of Bill of Entry. The assessment is only complete when the same is effected in conformity with the provisions of Section 17 of the said Act. Since, in this case the goods were cleared after the examination as per Section 17 of the said Act and at the time of examination the short landing of the goods had been noticed. Therefore, at the material time itself, the assessment shows that duty payable is Rs.21,972/- as against the duty deposited of Rs.45,982/- and, accordingly, the excess duty paid became refundable. What further re-assessment is called for is not understood, when at the time of first assessment duty becomes refundable? The proper course would have been to pass the order of refund suo-moto at the time of said assessment without troubling the Appellants to file the claim. Since, the assessing officer did not do his job in full, subsequent avoidable problems cropped up. In short, I fully agree with the Appellants contention that there was not no cause for re-assessment in allowing the refund.
5. The Revenues only contention is that the respondents have not challenged the Bill of Entry. I do not find any merit in the above plea of the Revenue, inasmuch as there was no lis between the respondents and the Revenue so as to challenge the same before the higher appellate forum. The dispute relates to arithmetical calculation of payment of duty. The same was paid accepting import of three packages, whereas only two packages arrived. It is simple case of payment of duty required to be deposited by an importer. In the absence of lis between the respondents and the Revenue, non challenge of bill of entry will not be fatal to the respondents claim of refund of excess deposit. Accordingly, I find no merit in the Revenues appeal and reject the same.
(Pronounced in the open court) (ARCHANA WADHWA) MEMBER (JUDICIAL) mk 5