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2023 (1) TMI 1194 - AT - CustomsRefund of the Customs Duty paid in respect of the imported goods - permission to re-export the imported goods - rejection of refund only on the ground that the refund claim of the appellant was hit by the provisions of Section 26A (3) ibid - HELD THAT:- The provisions of Section 26A and 27 of the Customs Act operate in different situations: Section 26A (1) specifically covers the refund of import duty in certain cases where the imported goods are found to be defective or not in conformity with the specifications, are identified to the satisfaction of the Assistant Commissioner, there is no claim of drawback and such goods are exported or the importer abandons the goods or they are destroyed or rendered commercially valueless. Thus, all the conditions at (a), (b), (c) and (d) provided under Section 26A (1) are to be satisfied cumulatively - Sub-section (3) to Section 26A prescribes that “no refund under sub-section (1) shall be allowed in respect of perishable goods and goods which have exceeded their shelf life..”. Thus, in my view, the scope of sub-section (3) is limited to the cumulative conditions under (a) to (d) of Section 26A (1) ibid. and the refund claim of any duty that has been paid could be entertained provided the said goods are cleared for home consumption. By ordering destruction, the imported goods in question could never be cleared for home consumption and consequently, the provisions of Section 26A ibid. would not apply. The only provision, therefore, that applies is Section 27 and hence, the rejection of refund by taking recourse to Section 26A (3) by the authorities below is incorrect - Section 27 also prescribes a time-limit of one year, but the same is subject to the saving proviso provided under sub-section (1B). There is no dispute that the appellant paid the duty provisionally and the same is reflected in the orders of lower authorities, including the order of destruction dated 27.05.2015 and thus, in terms of clause (c) to sub-section (1B) of Section 27 ibid., the limitation (of one year), if at all, would apply from the date of adjustment of duty after the final assessment thereof. It is found that even there is no dispute that the Revenue authorities have not passed the final assessment order as yet, as could be gathered from the grounds-of-appeal - the authorities below have erred in rejecting the refund claim, in a haste, even before a final assessment could be made as required under law. Appeal allowed.
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