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of <h1>Tribunal grants refund for duty on re-exported defective goods, emphasizes duty liability rules</h1> <h3>COMMR. OF CUS. (PORT), KOLKATA Versus BANMORE ELECTRICALS PVT. LTD.</h3> COMMR. OF CUS. (PORT), KOLKATA Versus BANMORE ELECTRICALS PVT. LTD. - 2006 (205) E.L.T. 689 (Tri. - Kolkata) Issues:Appeal against Order-in-Appeal granting refund of duty paid on imported defective goods.Detailed Analysis:1. Time Bar Issue:The Department contended that the refund claim was time-barred as it should have been filed within the prescribed time limit under Section 27 of the Customs Act from the date of duty payment or re-exportation of goods. The Commissioner (Appeals) did not address this issue in the order. However, the Tribunal noted that the goods were not cleared for home consumption and were re-exported, rendering the initial importation null and void. The Tribunal cited legal provisions and precedents to support the conclusion that the duty paid on non-existent goods was refundable, as it did not qualify as duty under Section 2(15) of the Act.2. Ownership and Duty Payment Issue:The Department argued that by paying a redemption fine, the appellant accepted ownership of the goods and cleared them for home consumption, thus making them liable for duty payment. However, the Tribunal found that since the goods were re-exported and not cleared for home consumption, the duty paid was an erroneous payment and refundable. The Tribunal emphasized that duty liability does not arise for non-existent goods and that the appellant should not be penalized for paying duty on goods that were ultimately re-exported.3. Duty Drawback Issue:The Department raised concerns about the non-conversion of shipping bills into drawback shipping bills under Section 74 for claiming duty drawback on the re-exported goods. The Tribunal dismissed this argument, stating that since the goods were not in existence and were not cleared for home consumption, the question of duty drawback did not apply. The Tribunal upheld the Commissioner (Appeals)' decision to grant the refund based on the facts and legal principles presented.In conclusion, the Tribunal upheld the Commissioner (Appeals)' decision to allow the refund claim, emphasizing that the duty paid on goods that were re-exported and not cleared for home consumption was refundable. The Tribunal referenced legal provisions and precedents to support the decision, highlighting the appellant's eligibility for a refund in such circumstances.
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