M/S. Season International vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. GOA/CUS/GSK/25/2011 dated 31.5.2011 passed by the Commissioner of Customs, Central Excise & Service Tax, (Appeals), Panaji, Goa )

For approval and signature:

Honble Mr. Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : 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 : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

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

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M/s. Season International : Appellant

VS

Commissioner of Central Excise, Customs & Service Tax, Goa. : Respondent

Appearance

Shri Anil Balani, Advocate for Appellant

Shri M.S. Reddy, Deputy Commissioner (A.R) for respondent

CORAM:

Mr. Anil Choudhary, Member (Judicial)

Date of hearing : 27/02/2015 Date of decision : 27/02/2015

ORDER NO.

Per : Anil Choudhary

The appellant M/s. Seasons International is in appeal against Order-in-Appeal No. GOA/CUS/CSK/25/2011 dt. 31.5.2011 passed by the Commissioner (Appeals) Central Excise, Customs & Service Tax, Goa.

2. The brief facts are that the appellant had imported certain fabrics and dispute with regard to the valuation and also the description of the goods. Accordingly, vide Order-in-Original dt. 24.7.2000 the Commissioner held that a case of misdeclaration is made out in respect of 7 Bills of Entry. With regard to 2 Bills of Entry No. 247 & 248 both dated 11.2.2000 the goods were held liable to be confiscated and allowed to be re-exported on payment of redemption fine and penalty. As out of the 7 Bills of Entry the importer/appellant had relinquished the goods for Bills of Entry No. 247-248 dt. 11.2.2000 documents of ownership of the said goods required with supplier M/s. Edmark Trading Co. Dubai/Surat The Commissioner allowed the importer/appellant to re-export the goods vide Bill of Entry No. 247-248 which were re-exported by the appellant after paying redemption fine and penalty. Subsequently, the appellant and Respondent Commissioner had preferred an appeal before this Tribunal in Appeal Nos. C/957/2001 & C/974/2000. The cross appeals by the assessee and Revenue were disposed vide common order dt.

20.3.2006. This Tribunal allowed the appeal of the assessee and found the entire notice to be bereft on any basis and therefore set aside the order of enhancement of value, confiscation fine and penalty as arrived at as unsustainable and allowed the assessees appeal. Thereafter, the assessee-appellant approached for refund and vide Order-in-Original dt. 29.10.2010, the refund was sanctioned in respect of the five Bills of Entry. In case, the appellant had taken delivery after payment of duty, fine and penalty. In respect of 5 Bills of Entry duty was found to be refundable amounting to Rs.10,37,324/-. But on the ground of unjust enrichment the same was ordered to be credited to Consumer Welfare Fund. Further, the amount of redemption fine and penalty in respect of (Five Bills of Entry) refund was sanctioned. Further no interest was paid holding that there is no provisions for payment of interest on refund of fine and penalty. As regards, the refund of fine and penalty in respect of the remaining Bills of Entry No. 247 & 248. The refund was rejected for the reason that the goods were redeemed by supplier and owner of the goods M/s. Edmark Trading Co. LLC and the appellant has no locus standi to file refund claim.

Being aggrieved, the appellant had preferred an appeal before the Commissioner (Appeals) challenging the non grant of refund on the ground of unjust enrichment also for refusal of refund in respect of Bill of Entry No. 247-248.

3. The Ld. Counsel for the appellant states that in the course of personal hearing before Commissioner (Appeals) dt. 2.5.2011 they had filed various documents. In support of contention, being Chartered Accountants Certificate issued M/s. H.T. Merchant & Co. dt. 11.3.2011 and also copies of Income Tax Returns for the period 2009-10 and 2010-11 and also filed Balance Sheets of the assessee running in several pages. The said documents were filed at the time of hearing. But in the order of Commissioner (Appeals), received by the appellant the appellant found that there is no reference to the documents filed and except to the Chartered Accountant Certificate which was held to be not reliable and accordingly the appeal was dismissed. The appellant immediately after receipt of the Order-in-Appeal vide letter dt. 13.6.2008 vide Speed Post, raised his objection before the Commissioner (Appeals) that there has been violation of principles of natural justice, the evidence have not been taken note of while passing the impugned order dt. 31.5.2011. Accordingly, the appellant prays for setting aside the impugned order and remanded the matter back to the Commissioner (Appeals). As regards the other ground i.e. non-payment of refund in respect of Bills of Entry No.247-248, the appellant states that it is an admitted fact that appellant had paid the amounts of fine and penalty and accordingly it is entitled to refund. This contention is further fortified by the letter of Assistant Commissioner of Customs dt. 13.6.2008 and 29.7.2008 addressed to the appellant wherein No objection certificate was called for from the appellant, to which appellant replied by the letter dt. 4.7.2008 stating its objection, claiming refund in respect of Bills of Entry No. 247-248 as payable to him. The appellant further pointed out that from the shipping bill for export of said goods, the copy annexed at page +49, wherein the appellant is exporter and the consignee is M/s. Edmark Trading Co. LLC, Dubai. Thus, there is no element of doubt and the appellant should be held to be entitled to the refund in respect to the said Bills of Entry NO. 247-248.

4. Heard the Ld. AR, relies on the impugned order.

5. Having considered the rival contention and total facts on record it is an admitted fact that the appellant had paid redemption fine and penalty in respect of Bills of Entry No. 247-248 and also taken pains to re-export and accordingly I hold that the appellant is entitled to the refund of redemption fine and penalty in respect of the aforesaid Bills of Entry No. 247 & 248 dt. 11.2.2000. As regards, the other issue of unjust enrichment, as the evidence filed by the appellant has not been considered by the Ld. Commissioner (Appeals), I set aside order of the Commissioner (Appeals) for re-determination in respect of unjust enrichment after hearing the appellant in accordance with law. Thus, the appeal is allowed in part as indicated above.

(Pronounced & Dictated in court)

(Anil Choudhary) Member (Judicial)

Sm

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