2014 (12) TMI 611

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....der dated 22 January, 2014 has been passed without granting personal hearing and also in defiance of the order dated 10 January, 2013 of the Commissioner of Customs (Appeals). 2. The petitioner is carrying on business of drilling operations in India and for that purpose, had entered into a contract with Oil and Natural Gas Commission (O.N.G.C.). In September, 2002, the petitioner imported spares and consumables to be used for drilling operations in India. These spares and consumables were exempted from duty under Customs Notification No. 21/2002 subject to producing an Essentiality Certificate from Director General of Hydrocarbons. However at the time of import, the petitioner was unable to claim the exemption in September, 2002 for....

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....ertificate issued by Director General of Hydrocarbons. However, as the re-export was done on 7 December, 2004, i.e. beyond 30 April, 2004, the benefit of Customs Notification No. 21/2002 could not be extended to the petitioner. 6. Being aggrieved, the petitioner filed an appeal to the Commissioner of Customs (Appeals). By order dated 10 January, 2013, the Commissioner of Customs (Appeals) allowed the petitioner's claim to exemption under Customs Notification No. 21/2002 and set aside the order in original dated 13 December, 2011. The Commissioner of Customs (Appeals) by the order dated 10 January, 2013 held that:- ".........the appellant has fulfilled the substantial conditions of notification 21/2002, and therefore, is eligible ....

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....above, it was held that the refund of Rs. l,89,15,549/- could not be granted. 9. The petitioner has challenged, the impugned order dated 22 January, 2014. The refusal to grant refund the absence of duty being paid under protest is wholly irrelevant. This is for the reason that the refund claim has been filed within the period of six months from the date of payment of duty. Therefore, the refund claim is in time and protest is irrelevant for grant of refund. Further, the export having taken place almost 10 years also, it is almost impossible to find the original documents. It appears that after filing of the petition, the petitioner had been able to obtain from the C.H.A. a photocopies of the customs attested invoice and the customs ....

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.... petitioner's refund application after hearing the petitioner on merits on all issues and also allowing the petitioner to submit photocopies of export invoices and packing list in support of its contention that balance quantity of spares and consumables have been re-exported in December, 2004 as claimed by the petitioner. 13. In the result, we pass the following order :- (i)    The impugned order dated 22 January, 2014/23 January, 2014 passed by the Deputy Commissioner of Customs (Import), Group V.B., Mumbai at Exhibit-I to the petition is quashed and set aside. The matter is remanded to the Deputy Commissioner of Customs (Import) with a direction to give the petitioner an opportunity of hearing and also an opportu....