SAD REFUND

[kailash dixit]

SIR, OUR BILL OF ENTRY WAS MADE ON 11.04.2012 AND RELATED CUSTOM DUTY IS PAID ON 02.05.2012. AND THE CORRESPONDING SALES INVOICE DATED AT 05.04.2012. Department says it is not possible that sales made before realise goods from the port. can you suggest me whether there is only possiblity to claim refund. I dont understand want kind of material facts you want to check from my side. and what step should i take for such refund. Highly thanks to you kailash dixit

[YAGAY andSUN]

Please refer my reply to your earlier query no. 5023 in which it has been stated that 'Departmet's contention is valid in this matter.

Now, please tell me if you don't have material then how can you sell it?  Fact are against you.  I had requrest you to check the material facts again that when did you receive the material and when did you sell it?

[kailash dixit]

date of sale of invoice is 05.04.12 date of bill of entry is 11.04.12 reasons why we sale goods before release goods from port. 1. we have single customer in south India. 2. sales contract is already made when goods are in transit. 3. sales price of the goods is also fixed as per the contract. 4. therefore VAT is paid according to the sales price. 5. and any profit or loss on this sale is bear by the company.

[YAGAY andSUN]

Now, the things are very much clearer to me.  You had sold the material without getting it cleared from the Customs Port. In this case, you can get refund from Customs Department under Notification No. 102/2007-Customs dated 14-09-2007.

Please answer to this question:-

To whom you had sold the material?

Whether, it was a high sea sale?

[kailash dixit]

he is our regular customer. no it is not a high sea sale. can u just advice me how can i justify this case to the department. there is any decided case law on the same issue.

[YAGAY andSUN]

What was the date of actual delivery of the imported goods. 

 You can make a plea that Invoice was raised in anticipation of goods which were cleared from the customs ports in due course.  In mercantile laws, such kind of sale is termed as futuristic and according to my knowledge, it may be allowed.

You would also  have to check the provisions of 'Sale of Goods Act' .  If possible, please also discuss this matter with your consultant along with all material facts as well as with documents.

This matter need deep study, analysis and discussion before reaching to any conclusion.

That's all from my side.

AI Summary

Customs refund for pre-clearance sale: entitlement hinges on factual proof that the sale was bona fide and delivery established. Refund depends on factual proof that a sale executed before customs clearance was bona fide; claimants should document actual delivery dates, contractual allocation of risk and title, and contemporaneous commercial records to establish entitlement to refund under Notification No.102/2007-Customs, distinguishing non-high-sea sales from high sea transactions and applying mercantile principles and the Sale of Goods Act.