TMI Blog2006 (8) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... lier, who agreed for free replacement and, accordingly, supplied fresh goods under invoice dated 27-11-2003. Upon arrival of the goods, the appellants filed Bill of Entry dated 3-2-2004 for home consumption. This clearance was also made on payment of duty. Later on, the appellants came to know that they were not liable to pay duty on the second clearance by virtue of exemption under Customs Notification No. 80/70, dated 29-8-70. Therefore, they filed a refund claim for the duty paid under Bill of Entry dated 3-2-2004. The original authority rejected the claim on the ground of non-fulfilment of conditions of the Notification. The first appellate authority went a step further and held that the claim was not maintainable. It, however, went int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals) either. On the question whether the conditions of the Notification were complied with by the importer, ld. Counsel submits that learned Commissioner (Appeals) has accepted compliance with conditions (i) (ii) and that the Bill of Entry per se indicated that the replacement of goods by the supplier was free of cost (FOC). Thus condition (iii) stood fulfilled at the very time of clearance of the goods under the second Bill of Entry. As regards condition (iv), it is submitted that, though the goods were sought to be surrendered to the Customs, the authorities did not accept it. In the circumstances, according to ld. Counsel, the benefit of exemption cannot be denied to the importer on the ground of non-compliance with cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions. We shall first address the question of maintainability of the refund claim. It is on record that the Bill of Entry was assessed by the appraising officer in the Customs House and was not countersigned by the Asst./Dy. Commissioner, nor is there any material to indicate that the Asst./Dy. Commissioner concerned participated in any manner in the assessment. On these facts, it has to be held, as the Board themselves held in the aforesaid circular, that appellate remedy under Section 128 of the Customs Act was not available to the assessee and that it was open to them to file a refund claim under Section 27 of the Act pointing out the mistake, if any, of the assessment and claiming the benefit of the Exemption Notification, if applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revised classification, valuation or rate of duty, then the order of assessment will be that of the Asstt. Collector. In the latter case, recourse to Section 27, Customs Act is ruled out and the Appellate procedure will only be appropriate. In the latter type of cases, the assessing officers concerned shall endorse the importers copy of the Bill of Entry suitably to indicate the fact of decision being taken by an Asstt. Collector. It appears from the facts of this case that the Dy. Commissioner of Customs came across the manner of assessment done by the appraising officer, for the first time, when he had occasion to deal with the assessee s refund claim. He was also confronted by the claim of the party for the benefit of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is now whether the refund claim ought to have been rejected on merits. We have already found compliance with conditions (i), (ii) (iii) of the Notification. Condition (iv) reads thus : (iv) the defective articles or component parts thereof if not re-exported, are destroyed, or surrendered to the Customs According to the above condition, the importer was liable to destroy the defective goods or surrender the same to the Customs. We have perused the letter dated 15-6-2004 of the Asst. Commissioner, Nagapattinam, addressed to the Commissioner of Customs, Tiruchirapalli (copies supplied by counsel). This letter indicates that the party requested the Commissioner to issue a Surrender Certificate in respect of the defective goods lying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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