TMI Blog2021 (7) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... r referring to the petitioner s application for refund of ₹ 4,71,347/- stating that the said refund claim was accepted. It is not in dispute that the petitioner s application for refund enclosed the documents except the customs clearance certificate which was not being issued by the Customs Authority - petitioner had also admittedly produced label / customs declaration furnished to the postal authorities to evidence export proper as the goods were exported by post by it. The petitioner had also produced the certificate issued by the Postal Department of Government of India confirming and corroborating delivery of postal consignments to the consignees outside the country with relevant details, such as place of destination, date of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rresponding to export sales caused by the petitioner enclosing the following documents in order to substantiate its claim for refund under Rule 35 of the APVAT Rules: (a) Copy of order from foreign buyer. (b) Copy of label/declaration accompanying the speed post parcel. (c) Copy of invoice issued to foreign purchaser. (d) Copy of Postal Department receipt. (e) Evidence of payment from foreign buyer i.e., Bank Credit Advice. 3. However, the petitioner could not produce copy of customs clearance certificate mentioned in Rule 35(6)(a)(ii) of the APVAT Rules as there was no such certificate being issued under the provisions of the Customs Act, Rules or Notifications issued thereunder. 4. The 1st respondent denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration accompanying the goods as contemplated under Section 82 of the Customs Act in lieu of shipping bill, and grant refund to the petitioner according to law. 7. In spite of this order of the Appellate Authority, the 1st respondent again passed an order on 21.08.2006 rejecting the petitioner s claim for refund from April, 2005 to November, 2005 on the ground that the petitioner did not file exclusive evidence of export documents as per Rule 35(6) of APVAT Rules, and further directed the petitioner to claim refund after March, 2007. 8. Assailing this order, the Writ Petition has been filed seeking refund of ₹ 6,38,724/- with interest @ 12% per annum in terms of Section 33(2) of the APVAT Act. 9. Counsel for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earance certificate was not produced by the petitioner. 12. Admittedly, under Section 38(1) of the APVAT Act, 2005, refund due to an exporter has to be made within 90 days from the date of VAT return, and so the 1st respondent who is presumed to be aware of the said provision, could not have rejected the refund due to the petitioner. 13. More importantly, on 28.04.2006, after remand by the Appellate Deputy Commissioner on 18.04.2006, it is the 1st respondent who had issued advice to the petitioner referring to the petitioner s application for refund of ₹ 4,71,347/- stating that the said refund claim was accepted. 14. We also fail to understand how in the impugned order the 1st respondent could simultaneously (i) reject the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents referred to above in the 2nd paragraph except the customs clearance certificate which was not being issued by the Customs Authority. 19. The petitioner had also admittedly produced label / customs declaration furnished to the postal authorities to evidence export proper as the goods were exported by post by it. The petitioner had also produced the certificate issued by the Postal Department of Government of India confirming and corroborating delivery of postal consignments to the consignees outside the country with relevant details, such as place of destination, date of delivery, etc. It had also produced other documents referred to in Rule 35(6) other than the customs clearance certificate. 20. In this view of the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
