B. Bhattacharya, J. - (1.) This appeal under Sec. 130 of the Customs Act, 1962 (hereinafter referred to as the Act) is at the instance of an importer and is directed against order dated June 1, 2004 passed by the Customs On appeal frorn 2004 (178) E.L.T. 491 (TriT - Kolkata) 13/202/2 Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata, in Appeal Case No. CDM -159/03 thereby dismissing the appeal preferred against the order dated June 19, 2003 passed by the Commissioner of Customs (Appeals), Kolkata refusing the claim of refund of the appellant herein.
(2.) The facts giving rise to filing of the present appeal may be summarised thus: (a) The appellant on or about November 15, 2001 imported 12 cases of Model G -1518 -AT -Planetarium Instrument System with 13 Panorama Screens and other accessories for the purpose of establishing a Planetarium in Lucknow for promoting and disseminating scientific education, knowledge and information amongst all the Sec. of the society, students and research scholars. (b) On January 30, 2002 the appellant filed ex -bond bill of entry to avoid further interest. The department assessed the goods to duty at the applicable rate @ 35% + 16% + 4% SAD, the total duty amounting to Rs. 4,00,42,110/ -. (c) On 11th February, 2002 the appellant paid the duty by filing ex -bond bill of entry being No. 1 -431 dated 11th February, 2002. The goods were however not cleared or removed from the warehouse. (d) On 1st March, 2002, the Government of India issued Exemption notification dated 1st March, 2002 in respect of the goods in question when those were within the bonded warehouse under Customs' jurisdiction. (e) On 11th March, 2002, the appellant applied for reassessment of the bill of entry and for refund of the excess duty already paid. (f) On 21st March, 2002, the goods were removed from the Customs Bonded Warehouse after booking the Preventive Officer against payment of requisite fees on 21st March, 2002. (g) The appellant on 22nd August, 2002 filed the refund claim but the Customs Refund Sec. rejected the refund claim on 22nd December, 2002. The appellant thus preferred an appeal before the Commissioner of Customs (Appeals) and the said authority rejected such appeal on 19th June, 2003.
(3.) Being dissatisfied, appellant preferred the appeal before the Tribunal and by the order impugned herein, the said Tribunal dismissed the appeal observing that the appellant had filed the bill of entry with all the required formalities for de -bonding and clearance of the goods on 11th February, 2002 and consequently, the goods were deemed to be cleared on 11th February, 2002 and the Godown keeper was holding the goods on behalf of the appellant. The Tribunal, thus, came to the conclusion that the rate of duty that would be applicable is the one prevalent on 11th February, 2002, and the appellant cannot take advantage of the subsequent Exemption notification dated 1st March, 2002.;