ORDER
M.P. Bohra, Member (J)
1. This appeal has been filed against the order passed by the Commissioner (Appeals) Dated 30th September, 2003.
2. Brief facts of the case as disclosed by the appellants are that M/s D.M. Shah & Co. Pvt. Ltd., 7, Sooterkin Street, Ist Floor, Kolkata filed an application for refund of duty amounting to Rs.1,16,419.00 in regard to importation of goods from abroad. The duty was paid on intimation that the goods had arrived and unless duty is paid the appellant would have no access to the place of storage of goods under custody of the Department of Customs. On examination of the goods, the appellants could detect that the goods for which the duty was paid did not belong to them. Therefore, they had not taken delivery of the goods. Within a couple of days, it was informed that another consignment has arrived at the Airport and the appellants in their anxiety made payment of Customs duty second time and cleared the goods. The appellants relinquished their right over the goods for which they paid duty initially and submitted application claiming refund of duty paid at the instance of Customs. The Assistant Commissioner for Refund Section, Customs House, Kolkata, rejected the claim for refund of duty on the ground that the appellants have filed a claim dated 23rd March, 2002 refund of Rs.1,16,419/- against the Bill of Entry No.217670 dated 18.8.2000. The said claim was received in this Office as on 23rd March, 2002 and the duty was paid on 1.9.2000. The claim was rejected on the ground of limitation and on the ground of unjust enrichment. The appeal was filed before the Commissioner (Appeals). The appeal was filed before the Commissioner (Appeals) of Customs, which was rejected by him.
The appellants preferred the present appeal.
3. Heard Shri K.P. Dey, ld. Advocate for the appellants and Shri N.K. Mishra, ld. JDR for the respondents.
4. Shri Dey submits that the appellants filed the refund claim on 31st October, 2000. The duty was paid on 19.8.2000. The refund claim was made within six months from the date of payment of duty and it cannot be said that the refund claim is barred by limitation. He submits that after long pursuation the appellants received the letter F.No.S-109-47/2000 ARS (Pt.I) dated 18th March, 2002 from the Assistant Commissioner, ARS informing that the original case file is misplaced and is not readily available. So, the appellant was requested to submit reconstructed copies of documents. In response to the said letter dated 18.3.2002 from the Assistant Commissioner, the appellant vide its letter dated 23rd March, 2002 submitted the documents as per list enclosed with the letter. The Assistant Commissioner totally ignored the facts of the case and rejected the claim on the basis of limitation and on unjust enrichment. He submits that the claim was filed within time. He, further, submits that the provisions of Section 27C or 27D of 28C has no application in the instant case since the appellants did not clear the goods for which refund has been claimed when the goods have not been cleared by the appellants, the provisions of above mentioned Sections do not come into play. He relies on the Tribunal’s decision in the case of Haldia Petrochemicals Ltd. v. Commissioner of Customs, Kolkata being Order No.A-389/Kol/2004 dated 17.6.04. He, therefore, submits that the appeal may kindly be allowed the refund may kindly be sanctioned.
5. Shri Mishra supports the impugned order. He submits that the claim was filed after the expiry of period of six months and was barred by law of limitation. The appellants could not produce any acknowledgement. Therefore, the Commissioner was right in rejecting the claim of the appellants. He, therefore, submits that the appeal may kindly be rejected.
6. I have heard the arguments advanced by the ld. Advocate and the ld. JDR and also perused the records. In the present case, the appellants filed the refund claim of 31st October, 2000. The duty was paid on 19th August, 2000. Therefore, the refund claim was made within a period of six months from the date of payment of duty. It is admitted by the Department that the file was mis-placed by the Departmental officers/officials. It is evident from the letter F.NO.S-109-47/2000 ARS (Pt.I) dated 18.3.2002 from the Assistant Commissioner, ARS informing that the original case file is misplaced and is not readily available. So, the appellant was requested to submit reconstructed copies of documents. Therefore, it does not lie in the month of the department to say that the claim is barred by limitation. The party cannot be penalized for the wrong commitment by the Departmental Officers/Officials, In the present case, the order for clearance of the goods under Section 47 has not been made nor order for warehousing under Section 60 of the Customs Act, 1962, has been made. The goods were not cleared by the appellants. Hence the appellant is not liable to pay any duty. Therefore, the appellant is entitled to refund of duty. The question of unjust enrichment does not arise. Since the goods were never cleared by the appellants, the question of passing of duty to the consumer does not arise. The lower authorities failed to appreciate this aspect of the case. Appeal deserves to be allowed. Consequently, I set aside the Order-in-Original and the impugned order and allow the appeal with consequential relief to the appellants.
