Power Build Ltd. Vs. Commissioner of Customs

Power Build Ltd. vs Commissioner of Customs

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Feb 26, 2003

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Citation: sooperkanoon.com/30140
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T Gowri, G Srinivasan
Decided On: Feb 26, 2003
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

Land Acquisition

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Power Build Ltd.

Respondent

Commissioner of Customs

Excerpt

.....what the commissioner (appeals) says.3. we are unable to find any statutory authority for the release advice. it is evidently evolved as a mechanism which would enable persons to import goods at more than one prot against a single licence obviating the need to carry the import licence from port to port. this is in fact mandated by the requirement then existing in the policy that a licence was required to be registered in a particular port. the release advice is thus nothing more than an indication to a custom station about the availability of the entitlement to import available in a particular licence, issued by the custom house where licence is registered. both the assistant commissioner and commissioner (appeals) agree that the release advice could have been issued at the exchange rate mentioned in the licence of rs. 31.80 = us$ 1. if that is the case and there is no dispute about this, - the debit made to the licence should have been corrected. there is no question of any formal order being issued relating to the issue of the release advice. it is not a document containing a decision or an order. this is a simple matter of technical error. we are told that it is a normal practice in cases, where the import licence mentions the exchange rate that has been applied while issuing it, to apply that rate to a tra issued against that licence and not the rate prevailing on the date of issue of tra.this is also logical, since the rupee value of the licence is based upon the exchange rate claimed by the applicant. it is not disputed that, applying the rate of exchange mentioned in the licence, there would be no shortfall. therefore the appellant was therefore entitled to refund. however before doing so, it will have to be ensured that the requirements contained in sub-section (2) of section 27 are complied with.4. subject to this condition, the appeal is allowed and the impugned order set aside.

Full Judgment

1. The appellant imported a consignment of 40 load cells, seeking clearance at Air Cargo Complex in Mumbai. The advance licence that covered the import of these goods, as well as other documents, had been registered by it in the Bombay Custom House. In accordance with the normal procedure, therefore, the Custom House issued to the Air Cargo Complex a release advice referred to as TRA indicating the balance in the licence available after taking into account the debit already made to it against the import made. The release advice was expressed in terms of rupees, and took into account the exchange rate that prevailed on the date of its issue of US$ 1 = 35.40. As a result, the department concluded that the goods were not entirely covered by the licence, there being a shortfall to the extent of Rs. 4,460/-. The goods of this value were therefore levied to duty, denying the benefit of the exemption contained in notification 128/94. The importer cleared these goods after payment of duty, and subsequently filed a claim for refund on the ground that the debit had been wrongly made, and if the exchange rate of $ 1 = 35.40 specified in the licence were taken into account, there would be no shortfall. In his order the Assistant Commissioner accepted that the exchange rate taken in the release advice was incorrect, but said that the importer should have asked for an assessment order from the concerned section in his regard and rejected the claim. On appeal, the Commissioner (Appeals) confirmed both the reasoning and the conclusion. Hence this appeal.

2. We have read the memorandum of appeal in the absence of the appellant or its representative, there being no request for adjournment. We have also head the departmental representative who reiterates what the Commissioner (Appeals) says.

3. We are unable to find any statutory authority for the release advice. It is evidently evolved as a mechanism which would enable persons to import goods at more than one prot against a single licence obviating the need to carry the import licence from port to port. This is in fact mandated by the requirement then existing in the policy that a licence was required to be registered in a particular port. The release advice is thus nothing more than an indication to a Custom station about the availability of the entitlement to import available in a particular licence, issued by the Custom House where licence is registered. Both the Assistant Commissioner and Commissioner (Appeals) agree that the release advice could have been issued at the exchange rate mentioned in the licence of Rs. 31.80 = US$ 1. If that is the case and there is no dispute about this, - the debit made to the licence should have been corrected. There is no question of any formal order being issued relating to the issue of the release advice. It is not a document containing a decision or an order. This is a simple matter of technical error. We are told that it is a normal practice in cases, where the import licence mentions the exchange rate that has been applied while issuing it, to apply that rate to a TRA issued against that licence and not the rate prevailing on the date of issue of TRA.This is also logical, since the rupee value of the licence is based upon the exchange rate claimed by the applicant. It is not disputed that, applying the rate of exchange mentioned in the licence, there would be no shortfall. Therefore the appellant was therefore entitled to refund. However before doing so, it will have to be ensured that the requirements contained in Sub-section (2) of Section 27 are complied with.

4. Subject to this condition, the appeal is allowed and the impugned order set aside.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Power Build Ltd. vs Commissioner of Customs Same Subject Land Acquisition Same Judge S T Gowri, G Srinivasan