9911796707
TMI Blog1990 (9) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of Rs. 2149.99 which had occurred due to wrong calculation of the first item of the said B/E No. DI/ 224 dated 5-6-1985. They also prayed that the same may be registered under Section 154 of the Customs Act, 1962. Along with mis-application they also filed Triplicate copy of the B/E No. DI-224 dated 5-6-1985 and the copy of the invoice. 3. After this refund claim was filed the ld. Assistant Collector passed an order No. S 101-105/86 ARS dated 27-3-1986 stating that as the Importer's application for refund had been received after the expiry of six months from the date of payment of duty, the same was time-barred under Section 27 of the Customs Act, 1962 and as such it was rejected. It is now admitted that the date of payment of duty was 5-6-1985 and the above-said application was filed on 30-3-1986 and therefore, the ld. Assistant Collector rejected the claim. 4. Against that order the appellants approached the ld. Collector (Appeals) who also upheld the order of the Assistant Collector and dismissed the appeal. Against that order the present appeal is filed before this Tribunal. 5. In the grounds of appeal, the most important point canvassed by the appellants is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-3-1986 is only a Refund Application which was received after the prescribed period of six months and therefore, it was barred under Sec. 27 of the Customs Act and he supported the conclusions arrived at by the two authorities below in this connection. 10. He, however, conceded that the appellants had mentioned the Sec. 154 to both the lower authorities i.e. A.C. and Collr. But it was his contention that in terms of Sec. 154 only clerical or arithmetical mistakes can be corrected and he stated that the Refund, if any due, can only be claimed under Sec. 27 of the Customs Act. In this connection, he "drew our attention to an order of the Tribunal in A. No. CD(SB)20/82-D, dated 6-1-1983 [1983 (13) E.L.T. 1026 (Tri.)] and he also submitted that the same has been confirmed by the Hon'ble Supreme Court vide Order No. 28/83-D dated 6-4-19841 in the case of Miles India Ltd. v. Assistant Collector of Customs [1987 (30) E.L.T. 641 (SC)], and in such circumstances, he stated that the impugned order is in accordance with the law. 11. The point that arises for consideration is whether the order is passed by the Collector in rejecting the application of the appellants as being barred unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that any claim filed before the customs authorities for refund of the excess duty has to be treated under Sec. 27, of the Customs Act, because there is no other provision providing for application for refund before the customs authorities, and the parties filing such refund claim are to be regulated by and restricted to the time limit provided therein and customs authorities would be right in rejecting the claims filed after the expiry of the period contemplated therein and parties are debarred from urging general principles of law of limitation in proceedings before the customs authorities. 32. Our further reason why we do not feel impressed with the argument of the ld. Counsel for the appellant that his application was not to be treated under Section 27 of the Customs Act is because it is apparent from record that the application was filed in the prescribed proforma which has apparently reference to Sec. 27 of the Customs Act because there is no other provision whereunder claim for refund could be filed before the authorities prescribed by the Customs Act. 33. This Tribunal while examining orders passed by such customs authorities, acting under the Act, has to examine th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Authorities. In such cases, the party's filing such refund claim has to be regulated and restricted to the time-limit provided under the Act and the Customs Authorities are bound by the provisions of the Act, in which they have to refund the claim, and they cannot be asked to follow the principles of law of limitation, as far as the Customs Act is concerned. The mere fact that the appellants have mentioned Sec. 154, is no reason to construe the Refund Application as an application not coming within the purview of the Section 27 of the Act. Even if the correction under Sec. 154 is made, the fact remains that the Refund of the same can be allowed only under Sec. 27 of the Customs Act/ as there is no other section providing for the same. Therefore, merely to make a correction becomes superfluous when such an amount, if found due, cannot be refunded, in view of the bar prescribed under Sec. 27 of the Act. 15. The Supreme Court further examined the provisions of the Act in a case reported in 1988 (37) E.L.T. 478 (SC) in the case of Collector of Central Excise, Chandigarh v. Doaba Cooperative Sugar Mills. In the said case in para-6, the Hon'ble Supreme Court has held as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Act and the Rules framed thereunder must be adhered to. Their Lordships were of the view that the authorities functioning under the Act are bound by the provisions of the Act. Their Lordships also referred to the case of Miles India Limited v. Assistant Collector of Customs in this regard. This clearly goes to show that their Lordships considered the Miles India case and approved the principles which were laid down by the C.E.G.A.T., Delhi in this regard. In such circumstances, when the Hon'ble Supreme Court has already held that the party claiming refund is bound by the four corners of the Act, his application is liable to be rejected as being one which is outside the time-limit prescribed under the Act. As already held by me Section 154 is to be read simultaneously with Sec. 27 of the Customs Act, 1962. If that is so, a mere correction under Sec. 154 will have no meaning, if by virtue of such correction, the prayer of the appellants for refund of the amount has to be rejected in view of the limitation prescribed under Sec. 27 of the Customs Act. The prayer of the appellants cannot be treated in isolation as one for correction and another for refund. The prayer is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 154 : "Correction of clerical errors, etc. : Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor-in-office of such officer, as the case may be." 22. A plain reading of the above provision shows that it does not refer specifically to any particular section as such, but allows correction of "any decision or order" "at any time". 23. The use of the words - 'at any time' - is significant and in stark contrast with the provision of a specific time-limit of six months only in Sec. 27. 24. Since Sec. 154 does not provide any time-limit it will not be correct or proper to import and apply the time-limit provided under Sec. 27 for granting relief due with reference to Sec. 154. 25. It has been pleaded that the mistakes can be corrected at any time under Sec. 154, but consequential relief could not be granted under that Section. But this argument does not appeal to my mind as such an inference was not warranted from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess could be involved in a number of situations distinct and distinguishable from those referred to under Sec. 27 as illustrated in the annexure to this order. It would be seen therefrom that Sec. 27 actually comes into play only in those cases of refund of import duty which arise pursuant to an order of assessment made by an officer lower in rank than Assistant Collector and does not cover other situations which may call for repayment or refund of export duty and other types of sums and amounts which are not in the nature of duty, such as fees, fines, penalty, warehousing dues or charges and sums adjusted or paid in terms of various bonds prescribed under different sections, rules and regulations. Section 27 does not even cover those import cases in which assessment has been made by any officer of the rank of Assistant Collector and above or a notification has been issued under Sec. 28A. It also does not cover such cases in which an amount is paid erroneously in excess of the amount assessed as duty as such sum could not be considered as duty paid in pursuance of an order of the proper officer. In contrast, a correction in terms of Sec. 154 may be required to be made in a decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consequential relief, if any, due, could be granted by the proper officer under this Section itself. 34. Since, however, the case has not been examined on merits in terms of Sec. 154 by the lower authorities their orders are required to be set aside and the matter is required to be remanded to them for de novo consideration in the light of the above observations and the law. It is ordered accordingly. 35. [Order per : Jyoti Balasundaram, Member (J)]. - The following questions have been referred to us for decision as a result of difference of opinion between the learned Members of the East Regional Bench :- "Whether (a) Section 154 and Section 27 of Customs Act, 1962 are independent of each other; or (b) The above Sections have to be read together (i.e. conjointly) in cases of refunds; If the answer is in the affirmative in respect of (a) above, then whether there is any time-limit for granting relief in such cases. If the answer to (b) above, is in the affirmative, whether the time-limit prescribed under Section 27 applies to all cases of refund under the Customs Act, 1962 (including these involving merely correction of clerical, typographical or arithmetical errors)" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise v. Southern Sulphates and Chemicals Private Limited. Shri Jain argues that the power of the Collector is wider than the power of this Tribunal for the following reasons :- (a) Under Section 128 of the Customs Act, the Collector can hear appeals against both 'orders' and 'decisions' while the Tribunal can hear appeals against orders alone. (b) Under Section 128A(2) the Collector can go into fresh grounds of appeal, while the power of the Tribunal to do so is not conferred by statute but only under the CEGAT (Procedure) Rules, 1982. (c) Under Section 128A(3) the Collector has powers of further enquiry while the Tribunal is bereft of such power. 41. On the question of arithmetical mistake, he submits that such mistakes will only relate to mistake in calculation of duty. 42. Shri Jain takes us through the scheme of the Customs Act and contends that Section 27 is not the relevant Section in this case for the following reasons:- (a) Every provision of the Customs Act is an independent and separate provision; (b) Section 154 confers powers to correct but does not speak of the consequences; (c) An order of assessment becomes final if not appealed against; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of customs or the successor-in-office of such officer, as the case may be." A plain reading of the Section makes it clear that it provides for correction of clerical or arithmetical mistakes in "any decision or order" "at any time". This Section is independent of Section 27 which deals with claims for refund of duty and provides a specific limitation of 6 months (or one year, as the case may be). Both Sections are distinct and separate, in nature and in scope and provide for different remedies. 48. Section 27 is not the only Section relating to refund of money under the Customs Act. Section 27 applies only in those cases of refund of import duty which arises pursuant to an order of assessment made by an officer lower in rank than Assistant Collector and does not cover other cases of repayment or refund of export duty and other sums which are not in the nature of duty, such as fees, fines, penalty, warehousing dues or charges. Section 27 also does not cover those cases of import in which assessment has been made by an officer of the rank of Assistant Collector and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by my learned sister Ms. Jyoti Balasundaram, Judicial Member and agreed to by my learned brother Shri I.J. Rao, Technical Member but with respect I am unable to persuade myself to agree with the proposed judgment. 54. Though brief facts of the case have been stated in paragraph 36 of the proposed order, it would be useful to state a few more facts to decide the questions referred to us for our opinion. 55. The appellants imported certain goods under B/L No. 010 dated 12-2-1985 and after filing the Bill of Entry No. DI/224 dated 5-6-1985 and payment of duty on 5-6-1985 cleared the goods for home consumption. Subsequently they filed their application for refund dated 12-3-1986 to the Assistant Collector of Customs, Custom House, Calcutta (which was received in his office on 30-3-1986) on the ground that there was an excess payment due to wrong calculation of the 1st item of the said B/E No. DI/224 dated 5-6-1985 and requested that this application/claim be registered under Section 154 of the Customs Act, 1962. However, the Assistant Collector vide his Order-in-Original No. S. 101-105/86 ARS dated 27-3-1986 rejected the claim of the appellants as time-barred under Section 27 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases of refund under the Customs Act, 1962 (including those involving merely correction of clerical, typographical or arithmetical errors)". 56. At the outset it may be pointed out that in the proposed order reliance has been placed on the case of Collector of Customs, Madras v. Southern Sulphates and Chemicals (P) Ltd., reported in 1986 (24) E.L.T. 589 - a case decided by the South Regional Bench, Madras - for taking the view that Section 154 of the Customs Act, 1962 is independent of Section 27 and the relief under Section 154 can be granted at any time as no time limit has been prescribed in this Section. But it deserves to be mentioned here that this case was distinguished by the Special Bench 'A' in the case of Minerals and Metals Trading Corporation of India Limited v. Collector of Customs, Bombay, 1987 (28) E.L.T. 128 observing that "In that case, the quantity, description and value of the goods had been correctly stated in the Bill of Entry. The assessing officer put down the rates of duty applicable against each item also correctly. It was the clerk/comptist, who made the mistake inasmuch as for one item he calculated the duty as 100% instead of at the correct rate of 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India Limited v. Collector of Customs, Bombay, supra, was not brought to the notice of the East Regional Bench at the time of hearing of the appeal on merits neither it was cited at the Bar during the hearing before us. 58. After giving my due consideration I agree with the ratio of the said judgment rendered in the case of Minerals and Metals Trading Corporation of India Limited v. Collector of Customs, Bombay, supra and would also like to add as under - 59. Prior to the enactment of the Customs Act, 1962 (which came into force from 1-2-1963) the refund claims for the repayment of duties that had been paid were governed by Sec. 40 and Sec. 140 of the Sea Customs Act, 1878. The said sections may be reproduced herein with advantage, which runs thus - "Sec. 40. - No customs duties or charges which have been paid and of which repayment, wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction shall be returned, unless such claim is made within three months from the date of such payment." "Sec. 140. - If any goods mentioned in a shipping bill or manifest be not shipped, or be shipped and afterwards relanded, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 a result of any order passed in appeal or revision under this Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf. (4) Save as provided in Section 26, no claim for refund of any duty shall be entertained except in accordance with the provisions of this section. (5) Notwithstanding anything contained in any other law, the provisions of this Section shall also apply to a claim for 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 such duty or were entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by an officer of Customs lower in rank than an Assistant Collector of Customs. 65. Now look at Section 154 of the Customs Act which runs thus - "Section 154. Correction of clerical errors, etc. - Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of Customs or the successor in office of such officer, as the case may be." 66. The said section was also brought on the statute along with Section 27 by enacting the Customs Act, 1962. Section 154 which provides for correction of clerical or arithmetical mistakes in any decision or order passed by the authorities mentioned therein or errors arising therein from any accidental slip or omission, at any time by the authorities mentioned therein. This is comparable to Section 152 of the Code of Civil Procedure, 1908, which reads as "Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he salutary principle of interpretation of statute that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make it consistent enactment of the whole statute for, such a construction has the merit of avoiding any inconsistency or repugnancy between a section and other parts of the statute. It is the duty of the Courts to avoid "a head-on clash" between two sections of the same Act. The provisions of one section of a statute cannot be used to defeat those of another "unless it is impossible to effect reconciliation between them". As stated by His Lordship Shri Venkatrama Aiyar in Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction." That, effect should be given to both, is the very essence of the rule. Thus a construction that reduces one of the provisions to a "useless lumber" or "dead letter" is not harmonious co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases falling under Sec. 28A, i.e. refund of import or export duty with reference to a notification issued in terms of Sec. 28A; (ii) Cases falling under Sec. 28; (iii) Cases falling under Sec. 26 (those relating to refund of export duty in certain cases); (iv) Cases of under-payment/over-payment of duty drawback by mistake and consequential further payment/demand; C. Cases of over-payment/under-payment of "Sums Other than Duty" and consequential refund/demand. (a) FEES of various types under different rules and regulations such as - (i) Passenger's Baggage Levy of Fees Regulations, 1966; (1) (2) (ii) Customs Fees for rendering service by Customs Officers Regulations, 1968; (iii) Levy of Fees Customs Documents Regulations, 1970; (iv) Levy of Transhipment Fee in terms of Transhipment (Condition) Regulations, 1963; (v) Fees payable in terms of Sec. 65(i) and regulations thereunder; (b) CHARGES payable with reference to Sec. 65 and Rules and Regulations made thereunder; (c) INTEREST paya ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
