TMI Blog2006 (4) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... ty the goods were sent for examination. During the examination it was found that the said goods are defective or second and were not permitted to be imported under OGL and requires specific licenses. The Respondent claimed innocence and entered into the correspondence with the foreign supplier, who in turn admitted that there was fault on their side in supplying these goods. Based on this report the respondent re-exported the goods back to the foreign suppliers. The Respondent s claim that the refund of the amount paid by them on the assessment of the Bill of entry was rejected by the Adjudicating Authority. On an appeal, the Commissioner (Appeals) allowed the refund claim. 3. The ld. DR attacked the order of the Commissioner (Appeals) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of L.M.L. Ltd. v. Collector of Central Excise, Kanpur. (iii) 1997 (91) E.L.T. 27 (S.C.) in the case of HMM Ltd. v. Administrator, Bangalore City Corporation. (iv) 2002 (145) E.L.T. 502 (S.C.) in the case of Unichem Laboratories Ltd. v. Collector of Central Excise, Bombay. 5. Considered the submissions made by both sides and perused the records. On perusal I find that the Commissioner (Appeals) vide his order-in-appeal in para 3 and 4 has dealt with the total issue in detail. The said paras read as under: (3) Scrutiny of records reveals that in the present case, there was a wrong shipment of goods. The various correspondences on record corroborate the same. That is the reason, why the foreign supplier agreed to take ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e import made by the appellant. Reliance is placed on the ratio of the decision reported in 1999 (113) E.L.T. 780 (All.). The only logical and legal position which emerges consequent upon confiscation and re-exports is that the importation of goods did not take place. The assessment made earlier in anticipation of clearances of goods for home consumption, would be rendered infructuous, on importation being nullified. In view of Hon ble Supreme Court s decision on harmonious construction of provisions of law, reported in 2002 (139) E.L.T. 6 (S.C.) Section 27, Section 28C, Section 28D and Section 47 of the act are to be read together. Hence, in the absence of any event of importation, as envisaged under the aforesaid Sections of the Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be denied. In the present case, since goods did not exist on re-exportation in compliance with the order of Customs authorities, the appellant cannot be made to suffer a double jeopardy, by rejected of their claim for refund as well as payment of duty on non-existent goods. The appellant shall be eligible for refund of amount paid erroneously on the impugned consignment, as the event of importation as envisaged under Section 27, Section 28C, Section 28D and Section 47 of the Act did not take place. The lower authority s order that the appellant should have availed of Drawback under Section 74 of the Act, is entirely erroneous in view of confiscation of goods before clearance for home consumption. Since goods did not exist, the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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