TMI Blog2018 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order gives finding beyond the scope of the proceedings - also it was found that both the authorities have not considered the provisions of foreign Trade Policy 2004-2009 which by para 6.15(b) allows the appellant for destruction of the goods under intimation to the Department In view of the infirmities, the matter needs to be remanded to the original authority to consider the claim of refund - appeal allowed by way of remand. - Appeal(s) Involved: C/1855/2011-SM - Final Order No. 20299/2018 - Dated:- 26-2-2018 - Shri Raghavendra, Advocate, GSAMPATH And S. RAGHU, For the Appellant Shri Parashivamurthy, Dy. Commissioner(AR), For the Respondent SHRI S.S GARG, JUDICIAL MEMBER Per: S.S GARG The present appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed as per para 6.15(b) of the Foreign Trade Policy 2004-09. The original authority vide order dt 10/02/2009 rejected the refund claim on the ground that warehousing period has expired for the said goods between March 2007 and Februry 2008 and the appellant had never applied for extension of the warehousing period. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who rejected the appeal. Hence the present appeal. 3. Heard both sides and perused records. 4.1. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the provisions of law in right perspective. He further submitted that the impugned order is contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same is not an appealable order. In support of this submission, he relied upon the decision in the case of BPCL Vs. CCE, Delhi [2014(312) ELT 255 (Tri. Del.)]. 43 He also submitted that the order rejecting the request for destruction of the obsolete items by the Assistant Commissioner was never communicated to the appellant and the claim for refund of duty paid on the obsolete item was merely rejected on the ground that the permission for destruction was rejected. He also submitted that the appellant has fulfilled the export obligation during the relevant period and having achieved the positive Net Foreign Exchange are entitled for destruction of obsolete items without payment of duty in terms of para 6.15(b) of the FTP 2004-09 and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter written by the Range officer to the appellant. Further I find that the refund claim has only been rejected on the ground that warehousing period has been expired whereas the fact of the matter is the Customs licence granted to the appellant had been renewed and the goods were still in the bonded warehouse. Further I find that the claim for refund under Section 27 of the Customs Act, 1962 has not been considered at all since the impugned order gives finding beyond the scope of the proceedings. It is also a fact that the goods are still in the bonded warehouse only and the appellant's unit will continue to be an EOIJ, It is well settled law that no duty is payable when the goods are in the bonded warehouse. Further I find that both th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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