9911796707
TMI Blog1982 (2) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... R, dated 15-9-1979 passed by the Appellate Collector of Customs, Bombay should not be annulled or modified. 2. Briefly stated, the facts are that the importers claimed refund of additional duty paid on coconut oil imported by them into India on the ground that the same were not processed and unprocessed V.N.E. Oil was covered under Exemption Notification No. 33/63-C.E., dated 1-3-1963. In the explanation to the aforesaid Notification, the term "processed" has been defined so as to include the following processes, viz., (i) treatment with alkali (ii) bleaching (iii) deodorisation. If any of the above processes is undertaken in respect of the goods, the same would be considered as processed V.N.E. Oil. Thus the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish that the goods in question attract the benefit of such exemption. In the instant cases, the importers were not able to establish the same beyond doubt. 6. The petitioners were given an opportunity of personal hearing on 17-1-1981. One of the points urged by the Advocate representing the importers was that some of the claims of the importers were initially rejected by the original authority as time barred under Sec. 27(1) of the Customs Act, whereas the Appellate authority had categorically stated that time limit stipulated under Sec. 27(1) of the Customs Act would not apply in these cases as the countervailing duty was not leviable on the goods and that since the show cause notice issued by the Government did not expressly cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e possible in raw coconut oil which was totally unprocessed. After examining the case records and the documents and certificates relied upon by the Department and the importers, the Government are of the considered view that in the instant cases it can neither be proved nor disproved as to whether the coconut oil in question was processed. The Custom House has no evidence or material to refute the affirmation from the suppliers that the goods were not processed. As the Department are not in a position to verify the claim of the petitioners on the basis of an objective and acceptable criterion, and moreover, when the affirmation from the suppliers to the effect that the goods in question were unprocessed V.N.E. oil was produced by one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Section 27(1) would not be applicable on account of lack of jurisdiction. In any case, as the petitioners raised the point, the Government issued a supplementary show cause notice specifically on the point of limitation also so that the petitioners got proper opportunity to explain their position in the matter in the interest of natural justice. In the hearing on 22-8-1981 with reference to the said supplementary notice, the petitioners pleaded that the limitation under Section 131(5) of the Customs Act would apply in these cases whereby the time limit for review should be read as 6 months. In the opinion of the petitioners, the order of the appellate authority holding that countervailing duty was not leviable would amount to non-le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, to suggest that the Government were tentatively of the view that limitation under Section 27(1) would not apply in these cases although countervailing duty was chargeable would be a totally erroneous proposition. In the original review notice, the Government proposed to restore the original orders whereby the claims of the petitioners that were hit by limitation under Section 27(1) were rejected as time barred. As such and having regard to the fact that principle of res judicata is not attracted in such cases, Government hold that the plea of the petitioners is not maintainable. On behalf of the petitioners a number of judicial pronouncements were cited wherein the courts held that in the cases where duty was not chargeable or invoice v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the point further, exemption is granted under the Act and not independent of the Act. In the matter of assessment where there is a dispute regarding application of an exemption notification, it is left to the proper officer who is required to assess the goods under the Act, to determine as to whether such exemption notification is attracted or not. Such decision is taken by the proper officer in the normal course in exercise of his jurisdiction and not in excess of jurisdiction. If in accordance with the proper officer the goods are not covered by exemption notification and such finding is eventually set aside by an authority higher than him, it cannot be said that the said erroneous decision fell outside the jurisdiction of the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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