TMI Blog1984 (9) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 10-2-1976 had been presented by the appellants, Hindustan Lever Ltd. to the Superintendent of Customs, Porbandar who had cleared the bill on 11-2-1976 after collecting the necessary charges, no duty being payable on the commodity (Groundnut Kernels) that day. The entry outwards of the vessel was on 12-2-1976. Under Notification No. 8/FNo. 347/1/76-TRU, dated 12-2-1976 duty @ Rs. 800/-per tonne had been imposed on this commodity. On 4-3-1977 the Superintendent of Customs, Porbandar sent as letter to the appellants mentioning the above fact and advised the appellants to pay the duty of Rs. 80,000/- on the goods exported. Under reply dated 21-3-1977 the appellants denied liability and pointed out that the demand was barred by time and reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further held, with reference to the defence on the ground of the demand being time-barred, that once it is established that the goods are chargeable to duty and the amount is due to the Government, the amount, if paid, cannot be refunded, notwithstanding the fact that the demand itself was time-barred under Section 28(1) of the Customs Act. 3. It is against the said order that the revision petition, now an appeal, had been preferred. Shri M.S. Gupta, Senior Legal Manager of the appellant, appeared on behalf of the appellant, the department being represented by Shri Vineet Ohri, SDR. 4. Shri Gupta contends that the provisions of Section 16 of the Customs Act cannot over-ride the provisions of Sections 50 and 51 and that once the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that the notification dated 12-2-1976 was not made available to the public on that day and was, in fact, printed and released on a subsequent date. It is claimed that for this reason also no duty could have been demanded. But it may be noted that no such ground had been raised either the reply to the show cause notice or even in the grounds of appeal. Nor is any evidence produced to support this averment of fact first made in the grounds of revision. Nor was this ground seriously pressed by Shri Gupta at the time of his arguments. This contention is also accordingly rejected. 6. But Shri Gupta contends that the demand for duty was obviously time-barred since the duty became payable on 12-2-1976 and the first demand therefor was under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eply dated 22-8-1977 to the show cause notice dated 21-5-1977, the appellants had specifically demanded a personal hearing also. But it may be seen that no personal hearing appears to have been granted and, in fact, no regular order had been passed by the Assistant Collector. After making reference to the reply dated 22-8-1977 the Assistant Collector had merely sent a letter to the appellants dated 30-8-1977 rejecting their claim regarding non-liability on the basis of the Shipping Bill having been passed on 11-2-1976 and requesting them to make the payment of Rs. 80,000/- as demanded under the show cause notice. It is significant that the Assistant Collector has made no reference whatever to the defence of time-bar raised in the reply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants had preferred an appeal against the order dated 30-8-1977 questioning the very legality of the demand, on the ground of time-bar under Section 28 as also non-liability to pay on the basis of the Shipping Bill having been cleared and passed on 11-2-1976. 11. While it may be true that if a person from whom duty is demanded (but demand is time-barred), chooses to make the payment voluntarily, he cannot subsequently claim refund thereof insofar as the duty was legally payable though the demand may have become time-barred. It is on this basis that the Appellate Collector has passed his order. But we are satisfied that the said principle would not apply to the facts of the present case. The payment by the appellants was not merely n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , hold that the orders of the lower authorities are liable to be set aside. We, accordingly, allow the appeal and set aside the orders of the lower authorities, leaving it open to the appellants to take necessary steps to obtain refund in the manner provided therefor in law. 14. [Per: U. Rao, Member (T)]. - With great respect to my learned Brothers, I would like to differ and record my reasons below. 15. My learned Brothers, observed in para 12 of the order that the Assistant Collector s order is liable to be quashed on the ground that the same has been passed without affording an opportunity of personal hearing (to the appellant). I would further observe that the Assistant Collector s letter dated 30-8-1977 appears to be neither a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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