Classic Colour Photo Vs. Collector of Customs - Court Judgment

Excerpt:
1. the appellants imported a machine called qss 503-d computerised colour photo processing machine alongwith accessories and shares under bill of entry no. 346 dated 28-6-1985. the clearance of the consignment was sought as project import at flat rate of duty of 45% ad valorem. at the time of examination of the goods it was found by the customs officer that the goods contained, inter alia, photo albums. the value of the albums is rs. 41,483/- on which the appellants paid duty of rs. 18,665/- @ 45% ad valorem, as stated by them. the customs officer objected to the clearance of the photo albums under project imports.the appellants bandoned the albums and on 13-9-1985 filed refund claim for rs. 18,667.15, being the customs duty paid on the goods abandoned.the refund claim was rejected by the assistant collector on the grounds that (i) the claimants have failed to produce any documentary evidence that surrender was permitted by the customs, (ii) goods have been adjudicated by the deputy collector and hence surrender may not be allowed, (iii) the claim does not fall within the purview of section 27 of customs act and (iv) the order of deputy collector is appealable before collector (appeals). assistant collector's order was upheld by the collector of customs (appeals) in the impugned order. hence, this appeal before this tribunal.2. i have heard shri sogani for the appellants and smt. chaturvedi for the respondent. shri sogani has argued that duty was paid on 23-8-1985 under self-assessment system and the goods were not assessed by customs officer. the goods were surrendered on 30-8-1985 before adjudication by the deputy collector on 2-9-1985. duty on the abandoned goods is not payable under section 23(2) of the customs act. hence, the amount is refundable to the appellants. smt. chaturvedi has drawn attention to the reasoning given by the lower authorities. during the hearing shri sogani filed copy of the appellants' letter dated 13-9-1985, assistant collector's letter c. no. viii(icd)6/256/85/826 dated 16-5-1986 to the appellants, list of the goods imported and challan dated 23-8-1985 showing payment of total customs duty of rs. 4,03,452.45.3. from the copy of letter dated 16-5-1986, i find that 14995 albums which had been surrendered, were taken over. from this letter it is established that the goods were surrendered to customs and the same were taken over. i also find from the appellants' letter dated 30-8-1985 to the deputy collector of customs that they wrote to the deputy collector relating that they would like to surrender the goods to customs. this shows that they abandoned the goods on 30-8-1985.under section 23(2) of the customs act, 1962, no duty is payable on the goods abandoned. in the circumstances, the appellants are entitled to the refund of duty paid on the photo albums abandoned to the customs.4. it is stated in the assistant collector's letter dated 16-5-1986 that "as per deputy collector's order dated 2-9-1986, the case was adjudicated . . .". the date 2-9-1986 seems to be erroneous as the assistant collector's letter is dated 16-5-1986. shri sogani has said that the case was adjudicated by the deputy collector on 2-9-1985. this date has not been controverted by the learned sdr. even otherwise, the importer is not liable to pay duty on the goods unless the same is cleared.5. i, therefore, set aside the impugned order and allow the appeal with consequential refund of duty.

Judgment:
1. The appellants imported a machine called QSS 503-D Computerised Colour Photo processing machine alongwith accessories and shares under Bill of Entry No. 346 dated 28-6-1985. The clearance of the consignment was sought as Project Import at flat rate of duty of 45% ad valorem. At the time of examination of the goods it was found by the Customs Officer that the goods contained, inter alia, photo albums. The value of the albums is Rs. 41,483/- on which the appellants paid duty of Rs. 18,665/- @ 45% ad valorem, as stated by them. The Customs Officer objected to the clearance of the photo albums under Project Imports.

The appellants bandoned the albums and on 13-9-1985 filed refund claim for Rs. 18,667.15, being the Customs duty paid on the goods abandoned.

The refund claim was rejected by the Assistant Collector on the grounds that (i) the claimants have failed to produce any documentary evidence that surrender was permitted by the Customs, (ii) goods have been adjudicated by the Deputy Collector and hence surrender may not be allowed, (iii) the claim does not fall within the purview of Section 27 of Customs Act and (iv) the order of Deputy Collector is appealable before Collector (Appeals). Assistant Collector's order was upheld by the Collector of Customs (Appeals) in the impugned order. Hence, this appeal before this Tribunal.

2. I have heard Shri Sogani for the appellants and Smt. Chaturvedi for the respondent. Shri Sogani has argued that duty was paid on 23-8-1985 under self-assessment system and the goods were not assessed by Customs Officer. The goods were surrendered on 30-8-1985 before adjudication by the Deputy Collector on 2-9-1985. Duty on the abandoned goods is not payable under Section 23(2) of the Customs Act. Hence, the amount is refundable to the appellants. Smt. Chaturvedi has drawn attention to the reasoning given by the lower authorities. During the hearing Shri Sogani filed copy of the appellants' letter dated 13-9-1985, Assistant Collector's letter C. No. VIII(ICD)6/256/85/826 dated 16-5-1986 to the appellants, list of the goods imported and challan dated 23-8-1985 showing payment of total Customs duty of Rs. 4,03,452.45.

3. From the copy of letter dated 16-5-1986, I find that 14995 albums which had been surrendered, were taken over. From this letter it is established that the goods were surrendered to Customs and the same were taken over. I also find from the appellants' letter dated 30-8-1985 to the Deputy Collector of Customs that they wrote to the Deputy Collector relating that they would like to surrender the goods to Customs. This shows that they abandoned the goods on 30-8-1985.

Under Section 23(2) of the Customs Act, 1962, no duty is payable on the goods abandoned. In the circumstances, the appellants are entitled to the refund of duty paid on the photo albums abandoned to the Customs.

4. It is stated in the Assistant Collector's letter dated 16-5-1986 that "as per Deputy Collector's order dated 2-9-1986, the case was adjudicated . . .". The date 2-9-1986 seems to be erroneous as the Assistant Collector's letter is dated 16-5-1986. Shri Sogani has said that the case was adjudicated by the Deputy Collector on 2-9-1985. This date has not been controverted by the learned SDR. Even otherwise, the importer is not liable to pay duty on the goods unless the same is cleared.

5. I, therefore, set aside the impugned order and allow the appeal with consequential refund of duty.