Legal principle

The burden is on the appellant to prove, with documentary evidence, that a plea was taken before the Commissioner (Appeals); in the absence of such evidence, the Tribunal is not required to consider that plea and may remand the matter for decision in accordance with the pleadings actually made below.

Court decision

The Tribunal did not decide the refund on merits. It held that the burden lay on the appellant to prove that the Section 27 plea had been taken before the Commissioner (Appeals), and since the appellant failed to produce the CA-1, grounds of appeal or written submissions despite being directed and given time until pronouncement, the Tribunal was not required to go into the applicability of Section 27. In the interest of justice it remanded the matter to the Commissioner (Appeals) with directions to verify the pleadings: if documentary evidence of the Section 27 plea is produced, to decide the refund claim on merits under Section 27; if not, to pass the Order-in-Appeal in terms of Section 26A only. The appeal was disposed of by way of remand, a procedural outcome giving the appellant one more opportunity but recording no merits ruling for either side.

Facts

M/s Steel Authority of India Limited, a PSU, imported radio remote control devices from Frankfurt, Germany for use in its blast-furnace cast houses, filing Bill of Entry No. 8673857 dated 30.08.2020 and paying Rs. 5,65,417 as duty vide challan dated 02.09.2020. The goods, being of a specified frequency, required an Equipment-Type Approval/licence from the WPC Wing under DGFT Notification No. 07/2015-20 dated 09.05.2016; as the shipper failed to furnish the test report needed for the licence application, Customs did not allow clearance for home consumption and warehoused the goods. SAIL then decided to return the goods, paid a Rs. 10,000 penalty and Rs. 6,01,800 storage rent to the Airport Authority of India, and re-exported them by airway bill dated 01.09.2021 without filing a shipping bill, the goods never having crossed the customs frontier. Its refund claim of Rs. 5,65,417 filed on 24.12.2021 was rejected by the Order-in-Original dated 30.11.2023 under the second proviso to Section 26A(1) (an offence appearing to have been committed), and the Order-in-Appeal dated 26.06.2024 upheld that rejection.

Key provisions

• Section 27, Customs Act, 1962 — Claim of refund duty
• Section 26A, Customs Act, 1962 — Refund of import duty in certain cases