TMI Blog2018 (11) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... e said shipping bill is still provisional. As long as the same is not finalised, the question of refund or otherwise may not arise. Matter needs to be reconsidered by adjudicating authority - appeal allowed by way of remand. - Appeal No. C/548/2009 - A/31184/2018 - Dated:- 26-9-2018 - Mr. M.V. Ravindran, Member (Judicial) And Mr. P. Venkata Subba Rao, Member (Technical) Mr Pawan Kumar A.R. for the Appellant Mr. M.S. Nagaraja, Adv for the Revenue ORDER Per M.V. Ravindran This appeal is filed by the Revenue against order-in-appeal No. 04 05/2009 (G) Cus dated 17.06.2009. 2. Heard both sides and perused the records. 3. On perusal of records, the issue that falls for consideration in this case is whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en upturned by the 1 st Appellate Authority without considering the provisions of the Customs Act 1962. He would draw our attention to the provisions of Section 16 of the Customs Act to submit that the date of determination of rate of duty and the valuation of export goods would be when the goods are entered for export under Section 50 on the date on which proper officer makes an order permitting clearance and loading of the goods for exportation under Section 51. He submits that in the case in hand, the let export order was made on 03.12.2008 when the assessment took place. It is his submission that order of the adjudicating authority be restored inasmuch there being no challenge to the assessment of the goods which were entered for expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing bills sailed from the load port on or after 08.12.2008. Hence they are eligible for the exemption which has been correctly granted by the 1 st Appellate Authority. 8. On a careful consideration of the submissions by both sides, we find that the entire issue is regarding whether the goods were cleared for export on 03.12.2008 and 08.12.2008, which if decided, would answer the question as to whether the appellant is eligible for the benefit of Notification No. 129/2008-Cus or otherwise. 9. The adjudicating authority in the order-in-original has come to a conclusion that the refund claim filed by the assessee is premature and not maintainable and also recorded the findings that the goods were assessed to duty on 03.12.2008 and let e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cleared for shipment on 03.12.2008 or 08.12.2008. On a specific query from the Bench both sides were unable to state as to whether the said shipping bill was finalised by the proper officer or otherwise. In our view, the said shipping bill with the endorsement of the remarks as herein reproduced would indicate that the said shipping bill is still provisional. As long as the same is not finalised, the question of refund or otherwise may not arise. In our view the matter needs reconsideration by the adjudicating authority. 12. In view of the above, without expressing any opinion on the merits of the case, leaving all the issues open, the impugned order is set aside and the matter is remitted back to the adjudicating authority to reconsi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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