2000 (11) TMI 221

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....cedures such as filing of Shipping Bills etc. Despite protest made by the appellants to the effect that "Tobacco Cess" was not leviable on the said goods being "manufactures of tobacco", the customs pressurised the appellants to pay the aforementioned "Cess". As the appellants were bound by their export obligation to the foreign buyer, they paid the "Cess" under protest by making a mention of the same in the relevant Shipping Bills. Thereafter, the appellants approached the Tobacco Board, Guntur for a clarification. The Tobacco Board supported the view of the appellants. Moreover, the Customs Revenue Audit who raised the objection on the issue of non-levy of Cess on Hookha Tobacco Paste had dropped the same subsequently. Thus, the matter re....

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....eld the Orders-in-Original. Hence this appeal before the Tribunal. 3. Shri P.K. Sengupta, ld. Consultant, assisted by Shri A. Ahmed, ld. Advocate, submits that the Commissioner failed to understand that the amount paid was not "Cess" under the Agricultural Produce Cess Act, 1940 since Hookha Tobacco Paste was not included in the Schedule to the said Act. He, therefore, submits that as Section 5A of the Act did not apply in the instant case, the amount collected by the Customs as "Cess" at the time of export of the said goods was illegal and this fact was not taken into consideration by the Assistant Collector at the time of adjudication of the case and even otherwise refund of export duty in certain cases is covered by Section 26 ibid. A....

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....lso would not apply. 4. Shri R.K. Roy, ld. JDR appearing for the Revenue, reiterates the reasoning of the authorities below. 5. We have carefully considered the rival contentions. The issue falls in a short compass; this is, whether the refund claim in respect of the said "Cess" which was collected without the authority of law can be rejected invoking the provisions of Section 26 and Section 27 of the Customs Act, 1962. In the instant case, the Adjudicating authority in his Order-in-Original admits that "Cess" is not leviable on the said goods. But he rejects the refund claim on the ground that neither the goods in question were reimported and/or returned to the exporter nor the provisions of Section 26 and Clauses (a) to (f) of sub-s....