2023 (1) TMI 601 - HC - Customs
Denial of rightful claim of refund of service tax being the Petitioner is an exporter coming under the Customs Act on the ground of hyper technicality when export have taken place actually - denial of statutory right of the Petitioner for mere procedural lapse - denial of just claim of the Petitioner in deviation of doctrine of precedent which is a fundamental constraint on judicial decision-making.
HELD THAT:- Under Section 2(20) of Customs Act the term ‘exporter’ would include any owner or any person holding himself out to be the exporter. In other words, the person holding out to be the exporter (in this case M/s. Liberty and M/s. RIPL) need not be the exporter. It could well include an entity like the present Assessee which in fact entered into the agreement pursuant to which the export took place.
Added to this fact is the finding of the Commissioner (Appeals), that for the limited purposes of facilitating the export, separate agreements were entered into by the Appellant with M/s. Liberty and M/s. RIPL whose limited role was to file the shipping bills for the purposes of export in their names. It has been being factually further found by the Commissioner (Appeals) that the entire cost of effecting the export was borne by the Appellant. It ran the risk of penalties if the goods were not exported or if there was delay in export or the goods were below the specifications. Importantly “the LC had been opened with the Bank by the Appellant”. The invoices of sale of goods was raised by the Appellant-Assessee on the buyers and it is the Assessee which had remittances in its own name pursuant to the exports made.
All the above factors go to show that it was in fact the Assessee which was the real exporter of the goods for the purpose of Section 2(20) of the Act - the Court is unable to concur with the view of the Tribunal that in the present case the Assessee was not entitled to the refunds since it was not the exporter.
The questions framed are answered in favour of the Assessee and against the Department.