Order Date – 04 January 2023

Parties: Elan Electronics India Vs Commissioner of Customs

Facts –

• The Appellants, Elan Electronics India, had imported 54 sets of battery operated rickshaw in CKD condition without battery and charger and customs duty was also deposited.
• Since the valid certificate of compliance was not with the appellant, the goods were re-exported and the appellant filed a refund claim on 28.5.2015 in respect of the amount deposited on 03.01.2014 towards the customs duty.
• The claim was rejected on the ground of time limitation being in contravention of section 27 (1) of Customs Act, 1962 and for being filed in contravention of Explanation A of section 26A (2) of Customs Act.

Issue –

• Whether the time bar under section 27(1) of Customs Act, 1962 is invokable with respect to the impugned refund claim?

Order –

• The Tribunal held that from the facts of this case it is clear that that the goods were never cleared for home consumption. There was no occasion for the appellant to actually pay the customs duty. Hence the amount in question cannot be called as the amount of duty to which section 27 applies. 
• It was also held that as per Section 49 Custom duty is collected when the goods have been cleared for home consumption. It becomes abundantly clear that the stage of collection of duty was never arrived; there was no need for the Customs Department to ask for any amount as duty.
• Hence it was held that Commissioner (Appeals) has wrongly invoked section 27(1) of the Customs Act, 1962 while rejecting the refund claim as barred by time. Section 26A(1) is otherwise not applicable to the facts of the present case.
• Appellant is held entitled for the said refund along with interest at the rate of 6% from the date of payment till the sanction arrived. The appeal is allowed.