2010 (12) TMI 1128

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....at the supplier's end and, subsequently, these two boxes were shipped again along with documents such as shipped verification, Chartered Engineer's certificate and same were imported by the appellant through another Bill of Entry. On the assessment of both the Bills of Entries, the appellant paid duty and cleared their goods. Thereafter, the appellant filed a refund claim for the excess duty of custom paid by them while clearing the goods originally on account of short shipments which were later supplied by the foreign supplier. The refund claim of the appellant was rejected on two grounds :- (a)     Inspection of short shipment of goods was not carried out in the presence of Central Excise and Custom authorities. ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....and considered the submissions. 7.1 The issue in hand is that the refund claim has been denied on two counts :- 1. Inspection of short shipment has not been carried out in the presence of customs authorities. 2. The assessment of original Bill of Entry has not been challenged by the appellant. Whether the refund claim is maintainable or not with regard to short shipment of goods in the absence of inspection made before the customs authorities has been clarified by the Board. As per Board's Circular No. 24/04-Cus., dated 18-3-2004 the Board has clarified as under :- "On import or export of goods, at times, it is found that duty has been paid in excess of what was actually leviable on the goods. Such excess payme....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s of no help to the Revenue as the same are distinguishable. 7.3 In the case of Board of Trustees of the Port of Mormugao (supra), the Hon'ble Bombay High Court has held that "in case the duty is recovered in respect of items which are not even imported, then the bar of Section 27 of the Act will not be attracted." 7.4 In the light of the above discussions, I find that on both the counts the refund claim of the appellant is maintainable as it is not disputed that the goods have been short shipped and the appellant has paid duty on the goods which has been short shipped. Moreover, the appellant has been able to prove the confirmation of short supply of the goods from the supplier, hence relying on the decision on Manipal Powe....