9911796707
TMI Blog1998 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellants are partnership firms and are registered exporters and shippers for the purposes of export of hide and skins. The appellants had the requisite quota licence granted to them by the Joint Chief Controller of Imports and Exports, Calcutta for export of Wet Blue Goats' skins for the period 1979-1980. After getting the quota the appellant entered into a contract with the Russian buyers for export of the Wet Blue Goats' skins. As per the appellants, it was stipulated in the contract with the Russian buyers that they would pay customs duty at the rate of 10% ad valorem only to be included in the F.O.B. value. Thereafter the goods were brought within the export-bound-yard and endorsement of STC and JCCI & E were also obtained. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export of the goods to the Russian buyers on fresh shipping bills on payment of prevailing rate of duty of 10% and on payment of redemption fine. It was also directed, on an undertaking given by the appellants firms that the export duty at the rate of 10% ad valorem might be adjusted from out of 25% export duty already paid by the appellants and lying with the Customs authorities at Calcutta, and on payment of redemption fine in lieu of confiscation of the goods. As per the appellants they have paid the redemption fine etc. As against the order of confiscation of the goods, the revision application was converted into an appeal before the CEGAT, the Tribunal while disposing all the appeals, upheld the order of Central Board of Excise and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the above order of the Assistant Collector failed before the Collector of Customs (Appeals), who vide his order dated 22-2-1993 rejected the same. The said order of the Collector (Appeals) is impugned before us. 3. We have heard the submissions made by Shri K.K. Bhattacharjee, ld. Advocate for the appellants and by Shri T.P. Kumar, ld. SDR for the Revenue. 4. We find that the refund claim has been rejected on two grounds. On the ground of time barred and on the ground that the appellants have recovered the said amount of 25% from their Russian buyers. As regards the rejection of refund claim on the point of time barred, we find that the view taken by the authorities below is not correct. The customs duty at the rate of 20% w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be entitled as such to the refund of the difference between 25% and 10% ad valorem export duty from the respondents. On the other hand if the price paid by the Russian buyers is inclusive only of export duty at 10% ad valorem, there is no question of transposition and the petitioners then would be entitled to the difference between 25% and 10% ad valorem export duty from the respondents." 6. The moot point required to be decided in view of the directions of the Hon'ble High Court of Calcutta is as to whether the applicants have recovered the said amount of 25% of export duty deposited by them from the Russian buyers or not. From the impugned orders we find that at the time when the applicant entered into a contract, the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. And this had been admitted by the parties as well as their Advocate. The exporting firms' Advocates have admitted that the price of the goods paid by the Russian buyers included total duty leviable at the pertinent time which was 25% ad valorem. And no refund of the said money has been made to the Russian Buyers. The adjudicating authority has also observed that a firm failed to submit the relevant documents of all the contracts pertaining to all exports under consideration. 8. As against the above evidence relied upon by the adjudicating authority for his conclusion that the duty @25% has been received by the exporting firms from their Russian buyers, the appellants have drawn attention to the addendum to the contract which says t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember (T)]. - I have the benefit of the order proposed by my learned sister Mrs. Archana Wadhwa. 10. I agree with her conclusions in Para 8 of her orders proposed above. In view of this agreement and the appeals consequently getting rejected, I am of the view that it is not necessary to go into the question whether the duty paid by the appellants before shipment of the goods is to be considered as an advance payment and as such provisions of Section 27 are not applicable, as held by the learned sister in Para 4 of her order. 11. Therefore, without associating myself with her findings in Para 4 of her order, I agree that appeals deserve to be rejected in view of my agreement with findings of the learned Judicial Member in Para 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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