ORDER
C.N.B. Nair, Member (T)
1. The appellant imported iron and steel waste and scrap and filed 15 bills of entry for clearance between February, 1991 to November, 1991. The total quantity covered by those bills of entry and on which duty was paid was 7250 MTs. Subsequently, appellant filed refund application claiming a refund of over Rs. 11 lakhs. The ground taken was that the appellant was delivered only a lower quantity than the quantity on which duty was paid. It was also submitted that the quantity was delivered under customs supervision.
2. The refund claim remains rejected on the ground that the claim with regard to 13 bills of entry were filed beyond the period of limitation and in respect of the goods, the appellant has not shown to Customs satisfaction that the imported goods have been lost or destroyed, so as to get the benefit of remission under Section 23 of the Customs Act.
3. We have perused and heard both sides. The submission of the learned Counsel for the appellant is that since duty liability was on imported goods and it is clear that appellant had been delivered only lower quantity than the quantity on which duty had been paid, excess payment is clear and the same is required to be refunded. With record to the finding that refund claim is time-barred, the submission is that original payment of duty was on provisional basis and the assessments were finalised only much later and that when the time-limit was counted from the finalisation of assessments, claim would be found to be within the time. Learned Counsel has also relied on the decision of the Tribunal in the case of Commissioner of Customs and Central Excise Cochin v. Tata Keltron Ltd. .
4. The appellant’s claim for refund is on the ground that duty was originally paid on much higher quantity than the quantity delivered to it. The actual quantity delivered remains certified by the Port as well as Customs authorities, in this view of the matter, there is no evidence to support a view that the entire quantities declared in the Bills of entry were actually imported or cleared by the appellant. The point taken by the revenue about remission of duty on goods lost, or destroyed has no relevance to the facts of the case, since the appellant had no control on the imported goods prior to its delivery to the appellant. The eligibility of such a claim to refund remains settled by the decision of this Tribunal in the case of C.C.E., Cochin v. Tata Keltron Ltd.
5. The finding that the refund application in regard to 13 bills of entry is time-barred is also contrary to the facts on record. When time-limit is computed from the date of finalisation of bills of entry, the claim would be within time.
6. In view of what is stated above, refund application is factually and legally correct and merits acceptance. Accordingly, the appeal allowed with consequential relief.
7. Revenue has filed a cross-objection. It seeks to show as to how the appellant has failed to prove that the goods were pilfered, lost or destroyed so as to get the benefit of Section 13 or Section 23 of the Customs Act. These objections are not relevant to the facts of the case inasmuch as the appellant’s claim is based on the quantity difference between the quantity on which duty was paid and the quantity delivered to it. Whether the higher quantity was pilfered or lost is not of any relevance to the claim.
(Pronounced in open Court on 19.12.2005)