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TMI Blog1999 (5) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... nd bunkers were also taken into account in calculating the value of the ship. The importers paid duty on the value of the ship under protest. At a later date, the Government clarified that bunkers left over on board should not be counted for calculating the cif value of the ship. The importers then claimed refund of duty pursuant to the Government instruction. The Asstt. Collector held that the claim was not hit by limitation since the duty was paid by mistake of law. For the same reason, he held that the provisions of unjust enrichment did not apply. He further held that the duty incidence had not been passed on to the consumers. On these grounds, he allowed the refund but adjusted the refund amount towards duty of excise payable as outsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have arisen under this Act, and not in any other act such as Central Excise Act. Therefore, no recovery of the Central Excise dues adjudged against any other adjudication order could have been made against the claim for refund arising from a Customs matter. Accordingly, the Assistant Collector s order deserves to be set aside. 4. In the appeal memorandum, reliance has been placed on Section 11 of the Central Excises Salt Act in making the claim that dues under the Central Excise Rules can be recovered by adjustment against any sums including the Customs Act going to the party that is under the control of Asstt. Commissioner. This contention is made in Appeal No. C/84/95-Bom. 5. I have considered the submissions made. The relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der a notification issued under Section 2 (T-4) officers of Central Excise can in certain cases be designated as proper officers under the Customs Act. Under Rule 4 of the Central Excise Rules, 1994, a similar provision exists whereby officers of Customs can be designated as officers of Central Excise. The proceedings do not indicate whether in the situation covered under the appeals the particular Asstt. Commissioner of Customs was so empowered or not. But that is beside the point. He had under his control certain sums owing to the defaulter and in terms of Section 11 he was competent to make the adjustment. The orders of the Collector (Appeals) in this respect are based on the wrong appreciation of the law and do not survive. This portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the delay in filing of the refund claim on this ground then he was mistaken. But this point has not been agitated by the department either before the Collector (Appeals) or before the Tribunal. His convinction that the burden has not been passed on to the customers does not flow from the point of mistake in law. In fact, there is no basis for this presumption at all nor is there any basis for the Collector (Appeals) finding. The ship was imported specifically for breaking. At that point the bunkers were lying on board. Unless the importers were operating another ship on which the bunkers were transported one has to take that the bunkers were sold. If they had sold them, logically the burden of duty on the bunkers would also have been p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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