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TMI Blog1984 (11) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants made an application before the Assistant Collector of Customs for refund of duty paid in respect of the short-landed crate. This application in Form A was received in the Refund Section on 20-5-1980. The Assistant Collector of Customs rejected their claim for refund as time-barred under Sec. 27(1) of the Customs Act, 1962 (to be hereinafter referred to as the act ) in as much as the payment of duty was made on 3-11-1979 and the claim for refund was received on 20-5-1980. The Appellants appeal before the Appellate Collector was unsuccessful. The Appellate Collector rejected the appeal holding that the provisions of Sec. 27(1) of the Act are mandatory, and therefore, the Assistant Collector s order cannot be interdered with. 3. Shri P.M. Parulekar, Deputy Manager of the appellants submitted that the Assistant Collector as well as the Appellate Collector committed an error in rejecting the appellants claim for refund. He contended that there was no dispute that one of the crates in respect of which refund of duty was claimed did not land in India, and as such, no duty was chargeable. If no duty was chargeable, there was no scope to invoke the provisions of Sec. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Sales Tax U.P. v. M/s. Parson Tools and Plants, Kanpur. (7) The Larger Bench of the Tribunal in Miles India Ltd., Baroda (Gujarat) v. The Appellate Collector of Customs, Bombay [1983 E.LT 1026 (CEGAT)], had held that any claim filed before the Custom Authorities for refund of the excess duty has to be treated under Sec. 27 of the Customs Act, and the parties refund claim are to be regulated by and restricted to the time provided in the said provisions and that the Custom Authorities could be right in rejecting the claim filed after the expiry of the period contemplated in that Section. The said decision of the Tribunal is binding on this Bench. (8) The Civil Appeal No. 1633/84 filed by Miles India Ltd. before the Supreme Court was dismissed as withdrawn, but while granting leave the Supreme Court has observed We-accord leave to withdraw the appeal, but make it clear that the order of the Customs, Excise Gold (Control) Appellate Tribunal suffer from no infirmity. If really, the payment of duty was under mistake of law, the appellants may seek recourse to such alternative remedy as it may be advised. This judgment of the Supreme Court according to Shri Gidwani i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified under the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods imported into, or exported from India. 7. Valuation of goods for purposes of assessment is provided in Sec. 14. 8. Date for determination of rate of duty and tariff value of imported goods are dealt with in Sec. 15. The modes of assessment of duty are provided under Sec. 17. The said Section reads : (1) After an importer has entered any imported goods under Sec. 46 or an exporter has entered any export goods under Sec. 50 of the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in Sec. 85, be assessed. (3) For the purpose of assessing duty under sub-section (2) the proper officer may require the importer, exporter or any other person to produce any contract, broker s note, policy of insurance, catalogue or other document whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. But then the Act provides for assessment and collection of duty even before the landing of the imported goods. Sec. 46(1) of the Act requires the importer of any goods, other than goods intended for transit or transshipment shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form. The Bill of Entry should normally include all the goods mentioned in the Bill of Lading or other receipts given by the carrier to the consignor. Sub-sec. (3) of Sec. 46 permits presentation of Bill of Entry at any time after the delivery of import manifest or import report. The first proviso to sub-section (3) confers discretion on the Collector of Customs to permit presentation of the Bill of Entry before the delivery of the import manifest or import report. The second proviso to sub-section (3) allows presentation of the Bill of Entry even before the delivery of import manifest if the vessel by which the goods have been shipped for importation into India is expected to arrive within a week from the date of such presentation. 12. Sub-section (4) of Sec. 17 authorises a proper officer to assess the goods to duty prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. 27(1) to the short-landed goods came up for consideration before the Bombay High Court in Indian Dairy Corporation v. Union of India, 1981 E.L.T. page 927. The facts of that case are : The appellants imported 40,000 cartons of butter-oil. After assessment they paid the duty on April 2nd, 1975. While clearing the goods they noticed that 161 cartons were missing. They obtained a short-landing certificate from the Bombay Port Trust. Thereafter they filed a refund application for refund of ₹ 18,030/- being the Customs duty paid on the missing 161 cartons which were short-landed. Their claims were rejected by the Assistant Collector, Appellate Collector as well as the Government of India. In the Writ Petition filed before the Bombay High Court, the Hon ble High Court after referring to the provisions of Sec. 27(1) observed : It is obvious from the mere reading of the Section that the applications for refund contemplated by this Section are those where the recovery of duty is not without jurisdiction. It has been repeatedly held by the Court while considering the ambit of Rule 11 of the Central Excise Rules that the period of Rule 11 has no application where recovery of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed as Indian Chemical Reagent Stripe. They contended that their goods should be classified under Tariff Item No. 90.17/18 of India Customs Tariff treating them as diagnostic medical1 tools. In the alternative they contended that their goods should be classified under Tariff Item No. 38.10/19 as chemicals not elsewhere specified . The Custom Authorities however assessed their goods under Tariff Item .No. 48.01/21 under the heading Papers and paper board, all sorts . They however, went on making the payment. On coming to know of the exemption Notification dated 17-9-1977 which exempted the goods imported by them from payment of Customs duty they lodged a refund claim with the Custom Authorities for the period falling between 10-2-1973 to- 10-8-1980 totalling ₹ 5,86,465.16 p.i on the ground that the additional Customs duty was paid by them under a mistake of law, and accordingly, the law of limitation under the Limitation Act, 1963 ought to apply in their case. Their claim was however, rejected by the Assistant Collector, the Appellate Collector and also by the Tribunal. 21. From the facts narrated above, it is clear that the refund claim of Miles India Ltd. did not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent find support in the decision of the Larger Bench in Miles India Ltd. But then there is a fallacy in the argument of Shri Gidwani. I have already considered the scope of Sec. 27. Sec. 27 does not debar refund of all payments irrespective of whether the payments were towards Customs duty or otherwise. It also does not debar refund of Customs duty if the payment thereof was not made in pursuance of an assessment made by an officer lower in rank than an Assistant Collector of Customs. Shri Gidwani also did not point out any other Section which either prohibits or precludes the Custom Authorities from refunding the payment made not towards duty or payment made towards duty but the payment was not in pursuance of an order of assessment. 24. The adjudicating authorities under the Customs [excepting the Collector (Appeals) and the Tribunal] function in dual capacities. They function as Administrative or Executive Officers and also function as adjudicating authorities. The Custom authorities do collect overtime charges. But if such charges are not utilised in the sense if no overtime was done the charges so collected are refunded. Similarly, the amounts in accounts credit are al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the items in question was not the real value or that the excess duty was lawfully levied or that the appellant-company was not entitled to the refund thereof for any reason except the omission to apply for it within the time prescribed by S. 40. But .since Sec. 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some other provision of law. No other provision was pointed out by them which would disentitle the appellant-company to the refund on the ground of its right being time-barred or otherwise. No such provision other than Section 40 which disentitled the appellant-company to the refund having been put forward and the Custom authorities not being entitled to retain the excess duty and a corresponding legal right in the appellant-company to recover it. Besides except S. 40 the Act contain no other provisions laying down any limitation within which an importer has to apply for refund The refusal to return the excess duty on the ground that the appellant-company had not applied within the time provided by the Act was clearly unsustainable. Since there was not and could not be any dispute with regard to the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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