2001 (7) TMI 172 - AT - Customs

Summary

Issues involved:
1. Claim for refund of duty on short-shipped goods filed beyond the limitation period.
2. Applicability of limitation under Section 27 to claims for refund of duty on short-shipped goods.

Issue 1: Claim for refund of duty on short-shipped goods filed beyond the limitation period
The appellant, a manufacturing company, ordered two machines, but one case did not arrive in Bombay. The claim for refund of Rs. 1,92,500 on the short-shipped goods was dismissed as barred by limitation under Section 27 of the Act. The Assistant Collector found the claim filed beyond six months from the date of duty payment and dismissed it. On appeal, the Collector (Appeals) allowed the appeal, stating that the limitation of six months would not apply to claims for refund of duty on short-landed goods. However, the claim was later dismissed by the Assistant Collector and the Collector (Appeals) as barred by limitation. The appellant then filed a claim for refund of duty paid on the goods that arrived later, which was also rejected on the same ground of being time-barred.

Issue 2: Applicability of limitation under Section 27 to claims for refund of duty on short-shipped goods
The Bombay High Court, in a previous judgment, considered a similar case where duty was paid twice on short-shipped goods, and the claim for refund was dismissed on the ground of limitation. The High Court held that if duty is recovered for items not even imported, the limitation under Section 27 would not apply. The current claim for refund was challenged by the departmental representative, arguing that it related to duty paid on the second occasion. However, the Tribunal held that the claim should be treated as relating to the duty initially paid, following the High Court's principle. The Tribunal emphasized that once the Collector (Appeals) ruled the initial claim was not time-barred, the Assistant Collector should have followed that decision or appealed against it.

In conclusion, the Tribunal held that the refund claim was not barred by limitation based on the High Court's judgment, which is binding on them. The department's argument that the duty incidence had not been passed on was rejected, as the goods never arrived in India, making it impossible for the duty incidence to have been passed on. Therefore, the appeal was allowed, and the impugned order was set aside.