TaxTMI 
TaxTMI 
2026 (7) TMI 1294
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.... 30.08.2020. The Bill of Entry was thereafter assessed and duty amounting to Rs. 5,65,417/- was paid vide Customs Challan No. 2031951661 dated 02.09.2020. Upon import, it was observed that the radio remote control devices, being of a specified frequency, were required to be accompanied by an Equipment-Type Approval / licence from the Wireless Planning and Coordination (WPC) Wing of the Ministry of Communications. The said observation was recorded by the Appraising Officer, Air Cargo Complex, vide letter dated 16.09.2020. Consequently, the goods were not allowed clearance for home consumption and were, instead, warehoused at the customs station. In terms of DGFT Notification No. 07/2015-20 dated 09.05.2016, the import of radio remote control devices of a specified frequency requires a licence from the WPC Wing. In order to apply for such a licence, the importer is required to file a test report of the product from an accredited laboratory, which the shipper was to provide. Despite repeated requests, the shipper failed to furnish the requisite test report, and the appellant was, therefore, unable to make the application for the licence. For this reason, the goods were not allowed cle....
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....incipally upon the second proviso to Section 26A(1) of the Act, it being held that refund could not be granted as an offence appeared to have been committed, in as much as the goods had been imported without the requisite WPC authorisation and the appellant had been subjected to fine and penalty before being permitted to re-export the goods. The appellant vide their memorandum of appeal before the Ld. Commissioner (Appeals) stated that the refund falls within the ambit of Section 27, and not Section 26A of the Customs Act. It was stated that the period of limitation under Section 27 of the Customs Act, would not time-bar the application for the reason that the limitation was not applicable in the present case. The duty paid was without jurisdiction, and hence, it could not be retained unjustly by the government, in direct contravention to Article 265 of the Constitution. The appeal preferred by the appellant was, in turn, rejected by the impugned Order-in-Appeal dated 26.06.2024. The appellate authority, rejected the appeal and upheld the decision of the adjudicating authority. Hence, the appellant is before the Tribunal. 5. The Learned Counsel, appearing for the appellant, make....
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....689 (Tri - Kolkata). There, goods imported on payment of duty were found defective, were warehoused and denied clearance, and were thereafter re-exported; the assessee's refund claim, initially rejected on the ground of limitation, was allowed by the Commissioner (Appeals) and the said view was affirmed by the Tribunal. 5.5 The reasoning applies a fortiori to the present facts. The appellant's goods, though physically brought to the customs station, were never cleared for home consumption and were re-exported while remaining under the control of the Customs authorities; they never crossed the customs barrier so as to be brought into the mass of goods of the country. As in Star Textile (supra), the amount paid does not bear the character of duty but is, at the highest, a deposit, and Section 27(1) has no application to its refund. 5.6 At the time of filing the Bill of Entry, the assessment was made provisionally, in anticipation that the goods would be cleared for home consumption. However, since the goods were never cleared for home consumption, the provisional assessment became infructuous. To date, no final assessment has been made by the Customs authority. In these cir....
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....ttached. The impugned order, by invoking the second proviso to a section that does not govern the claim at all, has proceeded on a fundamental error of law and is liable to be set aside. 5.12 Assuming, without admitting, that the claim is to be tested under the Act, it would fall to be considered under Section 27, and even then it would not be barred by limitation. The duty was paid only provisionally and the goods have never been finally assessed. In terms of Explanation 1(B)(c) to Section 27(1) of the Act, in the case of goods that are provisionally assessed, the relevant date for computing the period of limitation is the date of final assessment. 6. In view of the above submissions, it is prayed that the appeal may be allowed. 7. The Learned AR reiterates the findings of the lower authorities. He submits that it was the appellant who has changed his stand from Section 27 refund to Section 26A refund. Accordingly, both the authorities have gone through the statutory provision of Section 26A and the factual details and have correctly rejected the refund claim. Therefore, he prays that the appeal may be dismissed. 8. After going through the above submissions, it is obse....