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TMI Blog1992 (1) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... that Customs duty will be worked out on the basis of the final price bid. It was also stated that the responsibility of payment of Customs duty will be that of the Andaman Administration. 3. In pursuance of the aforesaid advertisement, the appellants Company won the highest bid in Public Auction held on 21-12-1986 at Port Blair and purchased three confiscated foreign trawlers and paid the total amount of Rs. 13,19,200.00. Thereafter, by a letter dated 5th June, 1987, the Superintendent of Police, Andaman Nicobar Islands intimated the appellants that as per letter dated 11-11-1986 received from Customs Collector, Calcutta, 51.7% of the bid amounts will have to be credited to the Customs, towards the duty in this behalf. 4. It is stated by the appellants that by Notification No. 262/58-Cus., dated 11th October, 1958, Ocean-Going Vessels other than vessels imported to be broken up, are exempt from the payment of Customs duty leviable thereon provided that any such vessel subsequently broken up shall be chargeable with duty which would be payable on her if she were imported to be broken up. It is the case of the appellants that these three vessels are Ocean-Going Vessels and are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. The instant appeal is directed against the above-said order. 9. The learned Counsel, Shri P.R. Biswas appearing along with the learned Advocate, Shri P.K. Das for the appellants/applicants contended that the finding of the Assistant Collector that the bid amount does not include Customs duty and that the refund cannot be allowed without an assessment is not correct. It was his contention that the Customs duty was deposited by the Andaman and Nicobar Islands Administration to the Customs Department and under Section 27 of the Customs Act, 1962, the same is refundable to the appellants. He also contended that the finding of the Collector of Customs (Appeals) that the benefit of Exemption Notification No. 262/58 cannot be given to the appellants, is not correct and more particularly, when there was no such dispute raised by the original authority, in his order. He also contended that the first appellate authority erred in not giving a finding on the grounds raised by him and also erred in taking a fresh ground which was not taken up in the original order. 10. The learned S.D.R., Shri M.N. Biswas stated that under Section 27 of the Customs Act, 1962 a refund of Duty made again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,48,099.00 in favour of Customs Department out of the total bid amount of Rs. 14,47,000.00. 13. It is further seen from the letter No. CID/3709/FB/89, dated 28th June, 1989, which was written by the Superintendent of Police, Andaman and Nicobar Islands, addressed to Collector of Customs that this amount was sent through D.D. The letter reads as follows: To The Collector of Customs, Customs House, Calcutta. Sub: Forwarding of D.D. No. MTL/A/1704733 dated 28-6-1989 for Rs. 7,48,099.00 regarding. Sir, Please find enclosed herewith a D .D. No. MTL/A/1704733 dated 28-6-1989 for Rs. 7,48,099.00 (Rupees Seven Lakhs forty-eight thousand ninety-nine only) together with this office voucher being the customs duty @ 51.7% of the total sale proceeds of 9 Nos. confiscated foreign trawlers auctioned during the year 1986-87 for Rs. 14,47,000/-. It is requested that necessary customs clearance certificate to those people who have purchased the abovesaid 9 Nos. confiscated trawlers on public auction may please be issued to them. It is also requested that the enclosed office voucher together with necessary receipt in token of having received the amount through Bank Draft may be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Where, as the result of any order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding in this regard. But he rejected the claim of the appellants totally on a different ground which was not disputed by the Assistant Collector. The ground on which he rejected the claim of the appellants was that the appellants are not entitled for the benefit of Notification No. 262/58-Cus. The relevant portion of his order reads as follows : According to Notification No. 262/58-Customs, ocean-going vessels other than vessels imported to be broken up are exempt from the whole of the duty of customs provided that any such vessel subsequently broken up shall be chargeable with the duty which would be payable on her if she were imported to be broken up. It would, therefore, follow in the absence of any guarantee on the part of the appellant that the subject vessel would not be broken up at a later date and further since it would not be possible for the department to ensure that the vessel is not broken up even if such a guarantee were to be given. It would not be possible to extend the benefit of Notification No. 262/58 to the goods in question and consequently the duty collected by the authority in Andaman Nicobar Islands and remitted to the customs department cannot at this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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