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TMI Blog2019 (3) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 97/2004-Cus dated 17th September 2004, exempting duty beyond 5%, was allowed following which `20,23,615/-, representing the excess duty arising from lowering of the import duty to 3% in the Policy on 11th April 2008, was claimed as refund. The goods were charged to higher rate of duty as the connected customs notification no. 64/2008-Cus was issued only on 9th May 2008, after the goods had been assessed and cleared. The original authority rejected the claim for refund by holding that failure to challenge the assessment itself precluded entitlement for refund. 2. The first appellate authority set aside the assessment and ordered re-assessment under the EPCG scheme while, at the same time, setting aside the rejection of the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory prescription thus '5. .... as per Section 15 of the Customs Act, the relevant date of determining the rate of duty is the date of which bill of entry is filed or in case of prior bill of entry, entry inward is granted. It is also not disputed that both these dates were prior to 1-4-1997 when the Notification prescribing concessional rate of duty at the rate of 10% was issued on 1-4-1997. Ministry of Commerce has no power to issue a notification exempting the goods from payment of duty. They are only empowered to issue licences for the purpose of import. Any relaxation by reduction in duty has to be supported by exemption notification to be issued by Department of Revenue in exercise of power conferred on it under the Customs Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. It is now settled in law that chargeability to duty on import crystallises on the entry of goods into the territorial waters of India and that the rate of duty that conforms to the prescription in section 15 of Customs Act, 1962 applies. There is no ambiguity that section 15 of Customs Act, 1962 prescribes that rate prevailing on the date of presentation of the bill of entry should be applied. On the facts and time-lines there is no dispute. The bills of entry for the clearance of the impugned goods were presented much before notification no. 64/2008-Cus dated 9th May, 2008 was issued. Therefore, the rate of duty applicable under the earlier notification would have to be adopted. 7. The rate prescribed in the authorization produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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