9911796707
TMI Blog2006 (8) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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, into the merits of the assessee's claim for exemption under the above Notification, and held that the benefit was not available to them for non fulfilment of conditions (iii) & (iv) of the Notification. Hence the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Id. counsel, the benefit of exemption cannot be denied to the importer on the ground of non compliance with condition (iv). 3. Ld. JCDR reiterates the findings of the appellate Commissioner and submits that the assessment of goods covered by the second Bill of Entry was final and it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 applicable. For the purpose of clarity, we reproduce hereunder the Board's circular:- "Check of Assessment on bills of entry by Asst. Collectors — Position regarding — Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Custom came across the manner of assessment done by the appraising officer, for 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 Notification. In our view, that was the opportunity for the Dy. Commissioner to ascertain whether the assessee was eligible for the exemption. In fact, availed himself of this opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles 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 Asstt. 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 in their unit so as to enable them to claim refund of the duty amount. It, further, indicates that the Superintendent of Customs and two Inspectors of Customs, Nagapattinam, visited the site and found the goods to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
