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TMI Blog1992 (9) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected were not leviable to such duty or were entitled to exemption from duty. Under this provision of Section 27, the parties can file a claim whose duty has been assessed by the officers of Customs which was not leviable or entitled for any duty exemption. In this case also an order of assessment is required to be made by officers of Customs. When the Hon ble CEGAT has observed that there was no order of assessment, the claim does not come within the purview of Section 27(5) even. The Hon ble CEGAT has given a wrong interpretation of clause (5) of Section 27 of Customs Act, 1962. (2) The above clause was inserted by Section 78 of the Finance Act, 1988 (26 of 1988) with effect from 13-05-1988. The application for refund of duty was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable on her if she were imported to be broken up. It is the case of the respondents that these three vessels are Ocean-Going Vessels and are not intended for being broken up. In terms of the above notification the respondent Company claimed refund of Customs duty amounting to Rs. 6/81,923.00, which was calculated as 51.7% of the total bid amount. This amount was paid by the Andaman and Nicobar Islands Administration to the Collector of Customs, Calcutta. In a letter dated 12th December, 1988 the Collector of Customs informed that the refund in the absence of corroborative documents from the Administration, Andaman and Nicobar Islands and without proper verification of the deposit of duty cannot be granted. This was again reiterated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, since it is not possible for the Department to ensure that it will not be broken up, the benefit of that Notification cannot be extended to the respondents and the Duty collected from the Andaman and Nicobar Islands Authorities, cannot be refunded to the respondents. 3. An appeal was filed before this Tribunal against the above-said order and the Tribunal held that Section 27, Clause (5) applies to the facts of the case. It was held that as per this clause the provisions shall also apply to a claim of refund of any amount collected as duty of Customs made on the ground that the goods in respect of which such amount was collected were not leviable to duty or were entitled to exemption from duty. The Tribunal also held that in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Act, 1962. He also pointed out that Section 27(5) is to be read independently and not jointly with Section 27(1) of the Act ibid and the same is self-evident from the provisions. Shri Biswas also contended that as otherwise Clause (5) of Section 27 becomes redundant. He also stated that at the time when the appeal was heard and decided Section 27, Clause (5) of the Customs Act, 1962 was in force and therefore, relief can be granted in accordance with the Section which was in force on the date on which the order was passed. 6. We have considered the submissions of both sides. As far as the first question is concerned, it is seen that Section 27(5) of the Customs Act, 1962 clearly states that notwithstanding anything contained in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was collected in this regard. The Superintendent of Police, Andaman Nicobar Islands by his letter dated 28-6-1989 forwarded to the Collector of Customs, Calcutta a demand draft towards Customs duty calculated at 51.7% of the total bid amount. In view of the above letter dated 28-6-1989, the respondents by their letters dated 12-7-1989 and 10-11-1989 stated that Customs duty was credited and recorded in the records of Customs as follows : File No. : S46-154/89P SO : 232 dated 12-7-1989 Cash Receipt No. M-1050 dated 12-07-1989 Head of Account No. 88 dated 12.07.1989. It is, thus, clear that duty so recovered by the Department was claimed by the respondents on the ground that the same is exempted from duty in view of Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt observed :- If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal may give effect to such a law even after the judgment of the Court of first instance. Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh (1975) 1 SCR-605 : (AIR 1974 SC 2068) where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal (1902) ILR 26 Mad 91 (FB) by Bhashyam lyenger J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur (supra) thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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