Law:

Section:

Customs Act, 1969-- ----Ss. 19-A & 33--Proviso--Scope of--Imported goods--Incidence of customs duty--Additional penalty was imposed--Confiscated goods on payment of fine--Refund--Inadvertence, error or misconstruction--Validity--If case does not fall within purview of such sub-section in that customs duty was not paid as a result of inadvertence, error or misconstruction then obviously proviso would not be relevant--Before a proviso can have any application, section itself must apply--Proviso to sub-section (1) would not be applicable because no such proviso is attached to sub-section (3), meaning thereby that refund has to be made notwithstanding fact that incidence of customs duty had been passed onto customer and therefore, Section 19-A of Act would not be attracted--Appeal was dismissed. THIS ORDER PASSED BY: MIAN SAQIB NISAR, JUSTICE:---.--- This appeal with the leave of the Court turns on whether the respondent is entitled to the refund of customs duty paid(along with the penalty), when, as per the case of the appellant the respondent was required to prove that the incidence of customs duty had not been passed onto the consumer in terms of the provisions of Section 19-A of the Customs Act, 1969 (the Act), which it failed to do. 2. The facts are that the respondent is an importer of fabrics and it made a declaration in the bill of entry that the imported goods were covered by heading 5407.5200, attracting 14% customs duty. The department controverted this declaration and claimed that instead the correct PTC heading would be 5903.1000, on which 25% customs duty was payable. Pursuant to a show-cause notice, an order-in-original dated 3.7.2006 was passed in which the latter heading was held to be applicable and the imported consignments were confiscated, an additional penalty was imposed and the respondent was given the option under Section 181 of the Act to redeem the confiscated goods on payment of a fine. In order to get the consignments released the respondent made the requisite payments but simultaneously assailed the order-in-original before the Collector of Customs, Sales Tax & Federal Excise (Appeal) [Collector (Appeals)] who, vide order dated…

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