S.S. Sekhon, Member (T)

1. The appellant had imported certain goods by post parcel No. 56356/96 of Postal Appraising Department (hereinafter referred to as PAD) and had declared the goods to be samples and sought their clearance duty free under DEEC scheme. The Assistant Commissioner, Postal Appraising Department after considering the material on record rejected the claim for exemption of customs duty on the said goods imported vide post parcel on the following grounds :

(1) Amendment to advance licence was made on 4-10-94 to make eligible subject to goods for the benefit of notification but the amendment is not made effective for a previous date i.e. 9-8-94. Hence licence is not valid for clearance of imported goods.

(2) The goods are declared as "samples (prototypes)" which are not covered by notification.

(3) It is not specified in the Notifications 203/92 and 204/92 that PADs are permissible places for importation.

2. The Commissioner (Appeals) rejected the appeal filed to him against this order on the following grounds -

(i) the import of goods through PAD is not covered by Notification Nos. 203/92 and 204/92 and the appellants have not disputed/controverted that the goods are samples.

(ii) Condition (vi) of Notification No. 203/92 and condition (vii) of Notification No. 204/92, specifically states that the exempt material should be utilized in discharge of export obligation.

(iii) both notifications specify the Seaports and ICDs through which inputs can be effected under the said notification and even where the special provision is made, the Commissioner by special orders can permit import from other than seaport, airports, land customs station or ICD and import through post is not included. Therefore the learned Asstt. Commissioner was correct in holding that the benefit of Notification Nos. 203/92 and 204/92 cannot be extended.

(iv) The relevant issue to be examined is whether the appellant have followed correct procedure and whether they are entitled to refund now, when the exemption under Notification No. 203/92 was denied to them. Once the exemption was disallowed and the appellants were directed to pay duty (which they were statutorily required to pay) duty under protest or at least file a refund claim to safeguard against limitation of time. They have filed to do either.

Hence this appeal.

3. After hearing both sides and considering the material on record it is found :

(a) The appellant has admitted that Notifications 203/92 and 204/92 do not stipulate PAD as one of the channels for importation of the goods. However they contend that, that could not be reason for not allowing to condone its import through post and permit the goods under the DEEC scheme, since the Commissioner had powers to issue orders to permit import from places other than seaports, air-ports and land custom station, the clearance should have been allowed. No order empowering the Commissioner has been specifically pointed out. The plea therefore cannot be considered. They have also contended that the view of the Commissioner that the goods imported i.e. ring gauge and setting plug is only a prototype/sample was an assumption since they had explained that the goods in question was used for checking components manufactured by them for export and hence are very much used in the export of goods under DEEC scheme as was also intimated to the Assistant Commissioner, it was also the claim of the appellants that the said goods were sent free of cost which were to be returned to the sellers after completion of the order. This claim of the appellants in itself, to our mind, would establish that the goods in question were not raw material or inputs used in relation to the manufacture of goods to be exported under the DEEC Scheme. The claim under DEEC scheme is therefore requires to be rejected.

(b) The other plea of the appellants that Commissioner (Appeals) rejection of their claim for refund as they have not paid duty under protest could not be considered since they had not filed refund claim cannot be found fault with. The assessment have to be challenged and only after the assessments are set aside there could be an eligibility of refund claim. Since the assessments of the denial of DEEC Nil duty rate is being upheld as the goods under import cannot be considered to be raw material, components, parts, etc., used in the final goods exported therefore, the refund claim rejection is upheld. As regards the plea of the date of applicability of the amendment of the DEEC licence since we find that measuring instruments which are admittedly required to be returned after the goods manufactured are checked by these measuring instruments and are therefore to be exported, cannot be considered to be material permissible to be cleared under DEEC scheme. The question of applicability of advance licence produced is therefore not required to be determined in the facts of this case. The appeal is therefore found to be bereft of merits and is dismissed.

4. In view of our findings, the appeal is dismissed.