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TMI Blog1987 (1) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector of Customs, Cochin, rejected their claim on the ground that duty was paid by the importers on 12-3-1981 whereas the reminder for the appellants refund claim was received only on 5-3-1982, i.e., after the expiry of six months time-limit prescribed under Section 27(l)(b) of the Customs Act, 1962. The Assistant Collector further recorded in his order that Their (the appellants ) claim of refund, dated 15-5-1981, stated to have been posted with a certificate-of-posting dated 15-5-1981, has not been received in this Customs House. 2. The appellants filed an appeal before the Appellate Collector. The Appellate Collector rejected the claim holding that there is no evidence to show that the refund application was received by the Assistant Collector within the time-limit stipulated under Section 27(1) of the Customs Act, 1962. He further examined the other grounds raised by the appellants and rejected the same. Hence, the present appeal before us. 3. Shri M.A. Rangaswamy and Miss Radha Rangaswamy, Advocates appearing for the appellants, submitted that, in this case, the appellants have produced a certificate-of-posting dated 15-5-1981 to show that they had filed the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a Three-Judges decision would prevail over a decision by a lesser number of judges. Shri Rangaswamy, in sum, argued that the refund application should be presumed to have been received by the Assistant Collector in time, and even if it was not, the law of limitation must be applied. 5. Shri G.V. Naik, the learned Jt. CDR, opposing the argument, submitted that the certificate-of-posting, a copy of which has been filed before us, does not indicate the name of the sending party nor does it indicate the contents of the letter. He further argued that it should be presumed that the Assistant Collector - a quasi judicial authority - verified the Customs House records before recording in his adjudication order that the refund application, stated to have been sent by the appellants, did not reach the Customs House. He strongly opposed the arguments of the learned Counsel for the appellants to the effect that no personal hearing was given to the appellants before the Assistant Collector. He invited our attention to the contents of the memo of appeal before the Collector wherein the appellant himself stated that a personal hearing was granted to him. Shri Naik submitted that the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be decided first whether the order passed by the Assistant Collector suffers from the failure of the principles of natural justice. If it so suffers, the other arguments advanced by both sides would be redundant. 10. The learned Advocate for the appellant stated, and reiterated, that there was no hearing given by the Assistant Collector before the refund application was rejected. In this context, we have examined the memo of appeal to which our attention was drawn by Revenue. We find that in the memo of appeal (before the Collector), there is no ground to the effect that principles of natural justice were violated by the Assistant Collector by not extending a personal hearing to the appellants. On the other hand, the following sentence in the appeal memo proves that there was a personal hearing. This sentence is as follows :- After personal hearing, the Assistant Collector of Customs, to our great surprise, rejected our application on the sole ground that the claim for refund of duty was time-barred . We are not at all willing to accept the argument of Shri Rangaswamy that the personal hearing, referred to in this context, is only an interview sought by the appellant, in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Assistant Collector. We have perused the Appellate Order impugned before us and we do not find any ground to hold that there was a refund application before the Asstt. Collector. 13. Shri Rangaswamy s argument then is that the appellant is entitled to a presumption that the refund application is before the Asstt. Collector. The basis for the presumption is the Certificate of Posting copy of which has been filed before us. Shri Rangaswamy referred to Illustration (f) to Section 114 of the Evidence Act and argued that in the common course of business, the refund application was sent under a certificate of posting and, therefore, a presumption is available. We have examined this argument. The provision of Evidence Act in terms were not applicable to proceedings before the Asstt. Collector. Further, the certificate of posting shows that a letter was posted addressed to the Assistant Collector. This, understandably, does not give the nature of the contents or the particulars of the sender. No attempt was made to bring before us the Despatch Register of the appellants to argue that the letter posted contained the refund application. According to appellants own saying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims for refund of duty :- 27. Claim for refund of duty. - (1) Any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs - (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty. Provided that the limitation of one year or six months, as the case may be, shall not apply where any duty has been paid under protest. Explanation :- Where any duty is paid provisionally under Section 18, the period of one year or six months, as the case may be, shall be computed from the date of adjustment of duty after the final assessment thereof. (2) If on receipt of any such application, the Assistant Collector of Customs is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly. (3)xxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X
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