M/S. Desmet Ballestra India Pvt. Ltd vs Commissioner Of Customs, Mumbai-Ii, ...

(Arising out of Order-in-Appeal No. 2712 (CRC-I)/2014(JNCH)/IMP-2576 dt. 14.7.2014 passed by the Commissioner of Customs (Appeals), Mumbai-II, JNCH, Nhava Sheva )

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S.Pruthi, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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M/s. Desmet Ballestra India Pvt. Ltd. : Appellant

VS

Commissioner of Customs, Mumbai-II, JNCH : Respondent

Appearance

Shri Krishna Kumar Advocate for Appellant

Shri Ahibaran Additional Collector (A.R) for respondent

CORAM:

Mr. M.V. Ravindran, Member (Judicial) Mr. P.S.Pruthi, Member (Technical)

Date of hearing : 12/05/2015 Date of decision :12/05/2015

ORDER NO.

Per : M.V. Ravindran

This appeal is directed against Order-in-Appeal No. 2712 (CRC-I)/2014(JNCH)/IMP-2576 dt. 14.7.2014.

2. Relevant fact that arises for consideration are the appellant had filed an application for refund of an amount of Customs duty paid by them which was in excess. The said refund claim was returned by the office of the Commissioner of Customs (Import) on the ground that the refund claim of the said amount has been filed by one M/s. Noble Natural Resources India Private Ltd., Kutch against the very same Bill of Entry and the said refund claim has been disposed of by an Order-in-Original dt. 19.6.2013 of rejection, hence refund claims filed by the appellant were unprocessed and returned to them. Against such an order, they preferred an appeal before the first appellate authority. The first appellate authority rejected the appeal filed by the appellant.

3. Ld. Advocate appearing on behalf of the appellant after taking us through the letter dt. 21.1.2014 of the office of the Commissioner of Customs (Import) JNPT would submit that the said letter of returning the refund claim is incorrect as the appellant has borne duty liability and said refund claim cannot be returned for the reason that refund claim filed by M/s. Noble Natural Resources India Private Ltd. has been rejected, he would submit that as per the provisions of Section 27 of the Customs Act, 1962, refund application could be filed by any person who has borne the incidence of duty. He would and take us through the Order-in-Appeal and submit that the entire Order-in-Appeal is totally misdirected as it is considering the appeal filed by this appellant as an appeal filed by M/s. Noble Natural Resources India Private Ltd. against Order-in-Original dt. 19.6.2013; which is an incorrect findings and appellant is not in appeal against said Order-in-Original dt. 19.6.2013. He would submit that they have got enough evidence to show that they have borne the incidence of duty and they are eligible for refund of the same.

4. Ld. AR reiterated the findings of the lower authority.

5. On perusal of the records, we find that by a letter dt. 21.1.2014, office of the Commissioner of Customs (Import) has returned the refund applications filed by the appellant, only on the ground that against the very same Bills of Entries, another person has filed a refund claim, which has been rejected. We find from the entire records that the appellant herein was claiming the amount as refund, on the ground that they have borne the incidence of duty. This assertion of the appellant seems to have been overlooked by the adjudicating authority or the office of the Commissioner of Customs (Import), Uran. In our considered view, the least of the office of Commissioner of Customs (Import) could have done, is to consider the appellants case on the merits and should have passed a speaking order.

6. We also find that the first appellate authority has totally misdirected himself in recording a findings in respect of an Order-in-Original which was not in appeal before him nor aggrieved party in that case had filed an appeal. In our view, the first appellant authority should have disposed of this appeal on its merit. Be that as it may, since the issue involved in this case needs to be factually verified from the records as to the claim of the appellant that they have borne the incidence of duty, we set aside the impugned orders and remand the matter back to the adjudicating authority to reconsider the refund application afresh. We direct the adjudicating authority to restore the refund applications back to their original number and dispose of on merits, after following the principles of natural justice.

7. The appeal is disposed of as indicated hereinabove.

(Pronounced in court)

(P.S.Pruthi) Member (Technical)

(M.V. Ravindran) Member (Judicial)

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