Customs, Excise and Gold Tribunal - Delhi
V.D. Industries vs Commissioner Of Customs on 9 June, 2003
Equivalent citations: 2003(162)ELT203(TRI-DEL)
ORDER P.G. Chacko, Member (J)
1. The appellants had imported a consignment of calculator parts and, for clearance thereof at the Customs, filed Bill of Entry dated 16-12-96 themselves assessing the goods to Customs duty of Rs. 1,78,451/- on the declared value of Rs. 2,36,189.87. This amount itself was paid on 18-12-96. On a second check including examination of the goods, the proper officer of Customs enhanced the value of the goods to Rs. 5,93,386.43 and demanded duty on the differential value. This demand was challenged by the party before the Commissioner (Appeals). But, that was not successful. The party preferred appeal to this Tribunal and, by Final Order No. 990/98-A, dated 15-7-98 [1999 (113) E.L.T. 951 (T)], the Tribunal set aside the enhancement of value in respect of a few parts and upheld the value enhancement in respect of the rest of the parts. The matter was accordingly remanded to the original authority for re-quantification of assessable value and duty as also redemption fine and penalty. Pursuant to this remand, the adjudicating authority requantified the assessable value and duty and reduced the redemption fine and penalty. Still aggrieved, the party preferred appeal to the Commissioner (Appeals) but, the latter upheld the decision of the lower authority. The dispute again came up before this Tribunal and the Tribunal passed Final Order No. 134/2000-A, dated 1-3-2000 [2000 (118) E.L.T. 456 (T)], the operative part of which is extracted below :-
"Thus, taking into consideration the entire facts and circumstances of the case, we reduce the redemption fine imposed under Section 125(2) of the Customs Act, to Rs. 20,000/- (Rupees Twenty Thousand only) and refix the penalty under Section 112(a) of the Customs Act at Rs. 10,000/- (Rupees Ten Thousand only)."
Subsequently, in April, 2000, the party filed an application with the Commissioner of Customs for refund of the amount of Rs. 1,78,451/- deposited on 18-2-96. The relevant part of this application is as under :-
"The said goods are lying with the Department and have not been released so far and so far no order for clearance of goods for home consumption under Section 47 of the Customs Act, 1962 has been made.
We hereby relinquish the title to the said goods and would therefore, request you to please refund the said amount paid on 18-12-1996.
The claim is not hit by limitation as the said matter was in CEGAT. (Please refer Final Order No. 134/2000-A, dated 1-3-2000 certified on 15-3-2000 and was received thereafter).".
This application was rejected as time-barred by the Dy. Commissioner of Customs (Refund). The order of the Dy. Commissioner was affirmed by the Commissioner (Appeals). Hence, the present appeal.
2. Heard both the sides.
Ld. Counsel submits that the refund claim has been rejected on the sole ground of time bar. In the refund application, the assessee relinquished the title to the goods covered by the Bill of Entry, under Sub-section (2) of Section 23 of the Customs Act. Where the title to such goods is relinquished at any time before any order is passed by the proper officer of Customs under Section 47 for clearance of the goods for home consumption, the owner of the goods has no liability to pay duty on the goods. In the instant case, Counsel submits, no order for clearance of the goods has so far been passed by any authority under Section 47 of the Act and, therefore, the relinquishment of title to the goods, made by the assessee in the refund application, attracts Sub-section (2) of Section 23 and, consequently, the amount deposited on 18-12-96 ceases to be a duty. In respect of refund of an amount which is not a duty, the limitation provisions under Section 27 of the Act will not be applicable, Counsel argues. It is his further submission that assessment of the goods was provisional and therefore, the time bar provisions would not be applicable to the refund claim. It is pointed out that the appellants had repeatedly requested for provisional release of the goods but such requests were not heeded. In the context of claiming that the amount deposited on 18-12-96 is no longer an amount of duty, Counsel has relied on the Tribunals decision in Collector of Customs v. Motor Industries Co. Ltd. - 1990 (50) E.L.T. 287 (Tribunal).
3. Ld. JDR has sought to defend the orders of the original and first appellate authorities on the strength of the findings contained therein.
4. I have considered the submissions. Sub-section (2) of Section 23 of the Act is claimed to have been invoked by the appellants for refund of the above amount, though this provision of law was not mentioned in the refund application, nor pressed before the lower authorities. Section 23 provides for remission of duty on lost, destroyed or abandoned goods. The provision for remission on goods lost or destroyed is contained in Sub-section (1). This sub-section is silent on abandonment of goods. Sub-section (2), which arises for closer scrutiny in this case, reads as under :-
"The owner of any imported goods may, at any time before an order for clearance of goods for home consumption under Section 47 or an order for permitting the deposit of goods in a warehouse under Section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon."
This provision enables the owner of any imported goods to relinquish his title to the goods at any time before an order for clearance of the goods for home consumption under Section 47 of the Act has been made. It further says that, upon such relinquishment of title, the owner of the goods would not be liable to pay the duty on the disclaimed, abandoned goods. It has been submitted that the refund application in question was filed under this sub-section. But there is nothing on record to indicate that the provision of law was, in fact, forcefully relied on by the party before the lower appellate authority. Apparently, the ground urged before that authority for refund is the alleged provisional nature of the duty assessment. I shall, nonetheless, consider the Counsel's submission. It requires to be ascertained whether the above provision of law is applicable at all to the facts of this case.
5. It is evident from the record that the amount of Rs. 1,78,451/- was paid by the appellants on the declared value of the goods, in a self-assessment done under the first part of Sub-section (4) of Section 17. In a reassessment under the second part of the sub-section, the proper officer of Customs enhanced the value of the goods and demanded the differential amount of duty. The goods were confiscated with option for redemption thereof on payment of fine, and a penalty was also imposed. This proceedings (referred to, in the impugned order, as adjudication-cunvassessment proceedings) was challenged before the Commissioner (Appeals). The rest of the history of litigation has been noted earlier in this order. The said adjudi-cation-cum-assessment order passed by the original authority was, inter alia, an order for clearance of the goods for home consumption under Section 47 of the Customs Act, inasmuch as it had directed the importer to redeem the confiscated goods. If that be so, the importer has abandoned the goods, i.e., relinquished, his title to the goods, only after an order under Section 47 for clearance of the goods for home consumption was passed. For Section 23(2) to be applicable, the goods should have been abandoned before such order was passed. Hence, Sub-section (2) of Section 23 is not applicable to the facts of this case and consequently the Counsel's contention that the amount sought to be refunded had ceased to be a duty upon abandonment of the goods is untenable. Further, the "no-duty" plea is grossly inconsistent with the other plea of provisional assessment of duty.
6. The amount paid by the appellants upon self-assessment under Section 17(4) of the Act cannot be anything other than duty of customs. There has never been a provisional assessment under Section 18 in respect of the goods in question. The finding of ld. Commissioner (Appeals) to this effect has only to be upheld. It is also pertinent to note that, in the refund application, the party has not pleaded that the assessment is provisional and therefore, the claim for refund is not barred by limitation. On the other hand, they have specifically pleaded that the claim is not hit by limitation "as the matter was in CEGAT". But this plea appears to have been abandoned in the memorandum of appeal. Moreover, the appellants themselves have no case that the refund claim was filed for any relief consequential to the Tribunal's order.
7. The duty was paid on 18-12-96 and the refund claim was filed in April, 2000 only. The limitation provisions of Section 27 of the Customs Act are applicable to this claim. The lower authorities have rightly found that the claim is time-barred. The impugned order is upheld and the present appeal is rejected.