1993 (7) TMI 82 - HC - Customs

Summary

Issues:
The judgment involves issues related to the refund of customs duty paid on imported goods, the application of the rule of limitation under Section 27 of the Customs Act, and the entitlement of the petitioners to the refund amount.

Refund of Customs Duty:
The petitioners, a body corporate constituted under the Major Port Trust Act, held an actual users import license for spare parts for a dredger. After discovering that certain items were short landed in the original consignment, they sought a supplementary license for the missing items. Despite protesting against the demand for customs duty on the supplementary items, the petitioners paid the duty under protest and cleared the consignment. Subsequently, they applied for a refund, which was rejected by the Assistant Collector, upheld in appeal by the Collector of Customs, and dismissed by the Customs, Excise and Gold (Control) Appellate Tribunal. The petitioners challenged these decisions under Article 226 of the Constitution of India.

Application of Rule of Limitation:
The authorities rejected the refund application on the grounds that it should have been sought in respect of duty paid initially and not on the supplementary items. They also held that if the application was made for the initial duty paid, it would be barred by the rule of limitation under Section 27 of the Customs Act. The petitioners argued that the refund application for duty paid on the supplementary items was maintainable, citing a previous judgment. However, the court disagreed, stating that the right of refund accrued because duty was recovered for items not shipped by the foreign suppliers, and the duty on the supplementary items was justified.

Entitlement to Refund:
The court found merit in the petitioners' argument that the application for refund should be treated as in respect of duty paid initially. It held that the bar of Section 27 of the Customs Act would not apply when duty is recovered for items not imported. Therefore, the court set aside the decisions of the lower authorities and directed the respondents to refund the amount of Rs. 66,452.13 to the petitioners within four weeks, with no order as to costs.