TMI Blog1992 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... licence from France. The Petitioner filed Bill of Entries D. 1211, D. 1212, D. 262, D. 1105 and D. 1106. The Assistant Collector of Customs assessed the goods under Customs Tariff Heading 70.21 and under Sec. 23A(4) of the Central Excise Tariff for countervailing or additional duty and that the Petitioner paid the duty as demanded and cleared the consignment. Even though the imported items were silica crucibles, the Assistant Collector of Customs classified the goods for assessing the duty under Heading No. 70.21 which relates to "other articles of goods", in view of Chapter Note 3 of Chapter XVII, which states "for the purpose of this schedule 'glass' is to be taken to extend to fused quartz and fused silica". Item No. 23A(4) of the Central Excise Tariff provides that for other glass and glassware including tableware the duty shall be as prescribed therein. Under Sec. 3 of the Customs Tariff Act, any article which is imported into India shall, in addition, be liable to a duty (hereinafter in this Section referred to as the additional duty) equal to the Excise duty for the time being leviable on a like article if produced or manufactured in India and (if such excise duty on a like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut jurisdiction and hence it should be refunded to the Petitioner. Under Sec. 27 of the Customs Act, hereinafter referred to as the Act, the claim should have been made within a period of six months from the date of payment of duty and while so if any attempt is made by the Petitioner by approaching the authorities for refund that would be of no avail and moreover since duty had been collected without there being any sanction of law, the Petitioner is entitled to invoke the jurisdiction of this Court. In these circumstances, the Petitioner has filed the above Writ Petitions claiming refund of the duty paid under mistake or duty collected by the Respondents without any jurisdiction or without any authority of law. 5. During the pendency of the above Writ Petition, the Central Excises and Customs Laws (Amendment) Act, 1991 which was published in the Gazette of India Extraordinary Part II, Sec. 1 No. 54 dated 18th September, 1991, came into force. Sub-sections (2) and (3) of the substituted Sec. 27 which are relevant for the purpose of this case, are as follows: "(2) If, on receipt of any such application, the Assistant Collector of Customs is satisfied that the whole or any part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that in view of the amendments of the Central Excises and Customs Laws Amendment Act, these writ petitions are not maintainable and that under Sec. 27(3) of the Amended Act, no refund could be made except as provided in sub-sec. (2) of Sec. 27 of the Amended Act. Hence, the Petitioner should file an application before the Assistant Collector of Customs and that the Assistant Collector of Customs alone is entitled to scrutinise the application as per the provisions of the Amended Act and in those circumstances the Writ Petitions are not maintainable. In view of the provisions of the Amended Act, the claim of the Petitioner has to be examined only by the Assistant Collector of Customs to find out as to whether the claim in these writ petitions was not barred by any limitation and that the incidence of duties was not transferred to any one in the course of trade and that under Sec. 28 of the Customs Act to save the limitation, the Petitioner ought to have paid the disputed duty under protest. 7A. The Petitioner in his supplementary affidavit clarified that the use of silica crucibles was in the manufacture of synthetic gems by the Petitioner and also clarified that the sili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is to say additional customs duty in respect of copper scrap so imported by the Petitioners therein. The Petitioners therein were denied the benefit of exemption notification for the purpose of levy of additional duty of customs at the time when they imported copper scrap. Thereafter, the Petitioner filed applications for refund of the additional duty of customs. But the refund applications were rejected and that was sought to be challenged in that writ petition. During the pendency of the writ petition, the amendment Act came into force. Then the plea that was taken up therein was that although the Petitioners therein would be entitled to the refund claimed by them their claim had to be considered in the light of the Amendment Act (Central Act 40 of 1991). It is in these circumstances, the Bombay High Court had occasion to consider the provisions of Sec. 27 of the Amended Act and observed as follows :- "Hence the entire scheme is designed for a situation where (1) the importer of goods after clearing the goods on payment of duty, sells these goods to others. In this process either he directly passes on the incidence of duty to his buyer or docs not. Only in the latter case wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27(2)". [para 21] "In other words clause (a) also covers all cases where the importer has not sold the imported goods in the same form in which they were imported, but has used or consumed the goods himself. This would include his using up or consuming the imported goods in the manufacture of a different commercial commodity. Clause (b) of the proviso brings out this aspect clearly in the case of an individual". [para 22] "This doctrine of unjust enrichment, which is the genesis of the amendment, has no application in cases where the imported goods are either consumed by the importer or are used by him in the manufacture of other products. In the case of imported product Customs duty paid on it becomes a part of the cost of manufacture of the new item or items in which the imported component is an ingredient. In such cases the doctrine of unjust enrichment is not invoked......." [para 24] "In the present case the additional duty of customs is levied on raw material which is being imported. It is not an additional duty on any finished product which is going to be sold to the consumer and to whom the incidence of the additional duty of customs can be passed on directly. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f three years is normally taken as a period beyond which the Court should not grant relief but that is not an inflexible rule. It depends upon the facts of each case." 12. In this case, it is manifest from the facts narrated above that the petitioner could not file an application for refund within the period of six months as specified under the proviso to Sec. 27(1) of the Customs Act. As per the judgment of the Tribunal, referred to hereinabove, the respondents erroneously and without jurisdiction collected additional tax from the Petitioner. It would be said that the respondents had collected additional tax without the authority of law and as such whether the Petitioner is entitled to refund. Such a right of entitlement accrues only after the judgment of the Tribunal, referred to hereinabove, and in the course of the proceedings the statutory period of limitation prescribed under Sec. 27(1) of the Act had already expired and since the statutory authority is bound by the statutory prescription, cannot act beyond the scope of the statutory provisions, the petitioner has rightly approached this Court under Art. 226 of the Constitution and the ratio of the decision in Salonah Tea C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect of the amending provisions. Sec. 27(2)(a) and (b) of the Act is very clear to the effect that the Petitioner is entitled to refund if such amount is relatable to the duty paid by the importer (a) if he had not passed on the incidence of such duty to any other person and (b) the duty on imports made by an individual for his personal use. In the instant case, the Petitioner had not passed on the incidence of duty to any other person. As explained supra, since the Petitioner has not directly passed on the goods as imported to the Customers or buyers, the question of passing on the incidence of duty does not arise. 14. It is manifest from the aforesaid provisions that if the importer had not passed on the incidence of duty to any other person and the duty on imports made by an individual for his own personal use, importer is entitled to refund. The said provision contemplates a situation that if an importer of the goods, after clearing the goods on payment of duty, sells the same to third parties and that by virtue of such sale the importer passes on the incidence of such duty to any other person, then the importer is not entitled to refund. When the importer made use of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der or any other law for the time being in force, nor refund shall be made except as provided in sub-section (2). 16. Considering the scope of amended Sec. 27 of the Act as a whole, the power to order refund is vested with the Assistant Collector of Customs, provided that the application for refund is filed in time i.e. within the period of limitation prescribed under Sec. 27(1) (b) of the Act, in such a form accompanied by such documentary or other evidence including the documents referred to in Sec. 28C and thereafter if the Assistant Collector is satisfied on consideration of those materials that the whole or any part of the duty paid by the applicant is refundable, he may make an order and if the applicant satisfies the requirements of sub-sections (a) and (b) or sub-section (1) of Section 27 of the Act, the applicant is entitled to refund. Considering the scope of the aforesaid provision of Sec. 27(l)(b), the said provision does not confer any power on the Assistant Collector to enlarge the period prescribed thereunder to entertain any application for refund, if such a claim is made beyond six months time from the date of payment of duty. In cases where there is bona fide an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed under the Act. 17. Having due regard to the aforesaid circumstances, it may be considered that the amended provision of Sec. 27 of the Act would apply only to the claims for refund before the Assistant Collector of Customs made within the period of limitation. If any claim is made, as contemplated under Sec. 27, the procedure prescribed under Sections 2 and 3 [sub-sections 2 and 3] have necessarily to be followed. 18. It may also be considered that under Sec. 27(l)(b) of the Act, in order to claim refund before the authority as per the amended provision of Sec. 27 of the Act, application for refund should be made in such a form as may be specified in this behalf and shall be accompanied by such documentary or other evidence, including the documents referred to in Sec. 28C as the applicant may furnish to establish that the amount of duty in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person. Sec. 28C of the Act provides that notwithstanding anything contained in the amended Act or any other law for the time being in force, every person who is liable to pay duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o had the benefit of refund before the amendment came into force are to be treated differently from the importers who made claim for refund and obtained an order or decree for refund but not executed and whose claims are still pending adjudication. It is arbitrary in the sense that the importers, who had already imported and made claim for refund, are required to furnish documents which the importer was not aware of at the time of import and it is unreasonable in the sense that there is no justification in requiring the petitioner who had imported goods about ten years ago, to produce document in the absence of any such requirement when the goods were cleared about a decade ago. In other words, it can be said that it may be discriminatory between the persons who had already received the refund and others who have not received the refund by reason of the pendency of the proceedings. In view of the foregoing reasons, the plea on the part of the learned Central Government Standing Counsel that the matter should be referred for adjudication once again by the statutory authority viz., the Assistant Collector concerned, cannot be sustained for more than one reason that the Assistant Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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