M/S. Supreme Petrochem Ltd vs Commissioner Of Customs (Import) ...
- CitationAppeal No. C/87561, 87562/2013-MUM & C/87609/2013-MUM.
Ratio decidendi
The rule this decision rests on
Where a Public Notice permits part clearance of bulk cargo and provides for examination reports to be recorded against each part clearance, goods are to be treated as in the importer's possession from the date of the part clearance, so that sales made under invoices issued after such part clearance are not defeated merely because they predate the final Out-of-Charge for the entire consignment. The date of final Out-of-Charge, which records clearance of the complete consignment, does not establish that part clearances were not physically effected before that date; a refund of Special Additional Duty under Notification No. 102/2007 cannot be denied on the sole ground that the sale invoices predate the final Out-of-Charge, where the goods sold are not shown by Revenue to differ from those covered by the part clearance.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. 234, 235,236/MCH/AC/KMK/CRARS/2013 dated 22.03.2013 passed by the Commissioner of Customs (A) Mumbai-I )
For approval and signature: Honble Mr. P.S. Pruthi, Member (Technical)
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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. Supreme Petrochem Ltd. : Appellant
VS
Commissioner of Customs (Import) Mumbai : Respondent
Appearance
Shri D.H. Nadkarni, Advocate for Appellant
Shri M.K. Mall, Assistant Commissioner (A.R) for respondent
CORAM: Mr. P.S. Pruthi, Member (Technical)
Date of hearing : 20/02/2015 Date of decision : 20/02/2015
ORDER NO.
The appellant is in appeal against the impugned Order-in-Appeal under which refund claims filed for refund of SAD in terms of Notification No. 102/2007 dt. 14.9.2007 have been rejected.
2. The facts are that the appellant imported Styrene Monomer which is a bulk commodity and hazardous. Under Public Notice No. 55/2004 dt. 31.8.2004, the Commissioner of Customs (Export), Mumbai allowed part clearance of bulk cargo by observance of the procedure under the said Public Notice. Para 8 of the Public Notice states that where the importers seek part clearances of the bulk cargo, the proper officer incharge of examination of bulk cargo, after examination, shall record the examination report on the reverse of original customs copy of the Bill of Entry. It further states that it will be the responsibility of the proper officer to record the examination report in respect of the total quantity cleared and thereafter final Out-of-Charge shall be given for the entire consignment in the system. It appears that this facility was allowed for clearance of bulk cargo which is hazardous. The appellant sold the goods under invoices as and when the part clearances of the goods was allowed in terms of the said Public Notice. The objection of Revenue to sanctioning of the SAD refund is that the date of invoices under which the part clearances were sold are prior to the date of final Out-of-Charge given for the entire consignment, in the EDI system. Therefore, the refund was rejected on the ground that the appellant could not have sold the goods before the Out of Charge was given. Commissioner (Appeals) upheld the order of the adjudicating authority while rejecting the refund claim.
3. Heard both sides and considered the submissions.
4. In this case, it is clear from the Public Notice that part clearances have been permitted in respect of the bulk cargo. The examination reports in respect of such part clearances are also recorded on the bills of entry. The purpose of allowing part clearances is obviously to give part delivery to the appellant. There can be no other interpretation of the word part clearances otherwise the whole procedure of giving part clearances in terms of the Public Notice would become otiose. The finding of Commissioner (Appeals) that goods do not come in the possession of the importer before the Out-of-Charge is given is totally fallacious and contradictory to the Public Notice issued by the Commissioner himself. The Commissioner (Appeals) has gone on a tangent and held that the appellant could not have sold the goods which were not in his possession. It is clear from the Public Notice that the goods will be in the possession of the appellant once the part clearance is allowed. The appellant have produced copies of invoices showing the sale of the goods to the buyers. Revenue has not shown that these goods are not the same in respect of which part clearance was given. Therefore, it would be wrong and totally unjust to state that the goods could not have been sold before the date of final Out-of-Charge. The date of final Out-of-Charge only reflects the date when the complete consignment has been cleared by Customs. It does not mean that the part clearances were not made physically before the date of final Out-of-Charge recorded on the Bill of Entry.
5. In view of the above, I hold that the refund of SAD in terms of notification No. 102/2007 is admissible.
6. The appeals are allowed with consequential relief in accordance with law.
(Pronounced & Dictated in court )
(P. S. Pruthi) Member (Technical)
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