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King Overseas Versus The Assistant Commissioner of Customs (Refunds) , Commissioner of Customs

2015 (10) TMI 1912 - MADRAS HIGH COURT

Refund of claim – Additional duty of Customs / SAD – Appellant contends that defects of application intimated to assesee almost after 2 years and adequate time not granted to appear and produce the documents – Certificate of Statutory Auditor correlating payment of ST/ VAT on imported goods with invoices of sale was not enclosed - Held That:- Defects of application should have been intimated within 10 days – Reasonable time must have been given to appear and produce documents; Respondent cannot .....

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llant to avail the alternative remedy of appeal as against an order rejecting their claim for refund. 2. Heard Mr.Joseph Prabhakar , learned counsel for the appellant and Mr.M.Devendran , learned Standing Counsel for the respondent. 3. The appellant filed a refund claim for a sum of ₹ 8 ,64,044.30 Ps, being the amount paid against 4% additional duty of customs levied under Section 3(5) of the Customs Tariff Act, 1975, for the import of reprocessed LLDPE granules vide 11 Bills of Entry. The .....

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ns 1995 also oblige the proper officer to return the application, if there are any defects, within 10 working days of receipt, the respondent sent a notice after nearly two years only on 18.2.2014 pointing out only one defect in the application made by the appellant. The only defect pointed out in the notice dated 18.2.2014 (sent after 21 months of filing of the refund claim) is as follows : "Certificate from statutory auditor/ Chartered Accountant, correlating the payment of ST/VAT on the .....

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appellant in their office at New Delhi, on 24.2.2014, the date on which, the appellant was supposed to appear and produce the documents. Therefore, the appellant could not comply with the demand. 7. Holding the appellant guilty of not complying with the deficiency memo, the proper officer passed an Order in Original dated 5.5.2014 rejecting the refund claim. Challenging the said order, the appellant filed a writ petition in W.P.No.22321 of 2014. The said writ petition was dismissed by the learne .....

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it case where the appellant should have been thrown to avail the alternative remedy. We have already extracted the only ground indicated in the notice dated 18.2.2014 sent by the Deputy Commissioner for not entertaining the refund claim. The reason is that a certificate from the Statutory Auditor correlating the payment of ST/ VAT on the imported goods with the invoices of sale was not enclosed. 9. But unfortunately, in the counter affidavit filed before the learned Judge, the respondent took a .....

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e is placed upon the said Notification and the Board's circular. 11. Under Notification No.102/2007 dated 14.9.2007, the exemption can be given effect to, if the conditions stipulated in paragraph 2 are fulfilled. Paragraph 2(e)(iii) of the said Notification, on which, reliance is placed by the respondent in their counter affidavit in the writ petition, shows that the document evidencing payment of appropriate sales tax/VAT, as the case may be, by the importer on the sale of such imported go .....

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