TMI Blog1983 (1) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants paid the Customs duty as well as auxiliary duty as per this assessment on 21-11-1977. 3. It appears that by notification No. 214-Customs dated 15-10-1977, duty under Sub-heading (1) of Heading No. 34.59 of the First Schedule to the Customs Tariff Act, 1975 (Import Tariff) had been reduced 40% ad valorem and correspondingly the auxiliary duty also stood reduced from 15% to 5%. The appellants and the Department, on the date the Bill of Entry was presented and duty paid, do not seem to have been in actual knowledge of this notification. The appellants later made a claim for refund on 18-11-1978 to the Assistant Collector of Customs, who rejected the claim as barred by limitation laid down in section 27(1) of the Act. 4. In appeal, the Appellate Collector of Customs, Bombay held that the appellants claim for refund was barred not only by limitation but was also not tenable on merits. From his orders, it appears that he held that the Notification aforesaid reducing the rate of duty was issued after the act of importation had already been completed (the vessel which imported the said goods anchored in Indian/Customs waters on 6-10-1977). He held that the rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol) Act, 1968. These rules came into force on 25-10-1982. 8. The appeal was first fixed for hearing before the Tribunal on 8.12.1982, when Shri Ashok Grover, Advocate appeared for the appellants and Shri N.V. Raghavan Iyer, Senior Departmental Representative, representing the Collector of Customs, Bombay orally raised a number of preliminary objections. He was directed to make his objections in writing. This was done. It is not necessary to describe, in detail, all the objections raised by Shri Iyer. The material objections are that under sub-section (4) of section 129-A of the Act, 45 days time should be given to the Respondent Collector of Customs to file cross-objections against the order of the Appellate Collector of Customs ; and that Notices of the date of hearing should have been issued to the Collector of Customs and ought not to have been served on the Departmental Representatives. 9. The Appellants Advocate filed reply to the objections raised by the Departmental Representative. The appellants opposed the objections raised by the Respondent. The parties were then heard on 15-12-1982, on these preliminary objections when the Tribunal found that the request of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were an appeal presented before it. Section 131B of the Act is only a transitional provision dealing with the procedure relating to appeals and proceedings pending before the Board and the Central Government and transferred to the Tribunal in consequence of the amendment. The provision only provides for a new forum and does not create any new rights in favour of the Respondent. The words as if such proceeding or matter were an appeal filed before it would not mean that the Revision Application filed before the Central Government has become an appeal before the Tribunal for all purposes. Otherwise, there was no necessity to say that the Tribunal may proceed with such proceeding or matter from the stage at which it was on that day and to provide for the applicant or other party making a demand for hearing or re-hearing before the Tribunal proceeds further with the proceeding or matter. The proceeding though called an appeal before the Tribunal still retains the character of a Revision application. The question of a cross-objection can arise only in an appeal and not in a Revision Application. It is also to be kept in mind that the Respondent, though earlier he had no right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants appeal both on the ground of limitation and on merits. For the purposes of this order, we would proceed on the premise that the duty payable by the appellants on 17-10-1977 was in terms of the amended notification i.e. appellants were liable to pay duty at the reduced rates. We are not entering into the question whether, in view of the ship bringing the goods having anchored in Indian waters on 6-10-1977, the appellants were entitled to the benefit of the reduced rates of duty or not as a result of notification dated 15-10-1977. 16. Coming to the question of limitation under section 27(1) of the Act in the appellants making claim for refund before the Assistant Collector of Customs. Shri Ashok Grover, the learned Counsel for the appellants, has vehemently contended that reading sections 15 and 46 of the Act, the duty leviable on the goods was at the rate prevalent when the Bill .of Entry was filed and the goods removed from the Custom House for home consumption. The Bill of Entry was presented on 17-10-1977 when, by Notification No. 214-Cus., dated 15-10-1977, the duty under Sub-heading (1) of Heading 84.59 of the First Schedule to the Customs Tariff Act, 1975 had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be applicable to the facts of the present case and is distinguishable. On the other hand, in M/s. Madras Rubber Factory v. Union of India and others - A.I.R. 1976 S.C. 368, the Supreme Court inter alia has held that where duty was not proved to have been paid under protest, section 27(1) was applicable and application for refund filed beyond the time fixed by the said section was rightly rejected. 19. In this connection, we may usefully refer to certain observations of Madras High Court in Prem Raj Ganpat Raj and Co. v. Assistant Collector of Customs, Madras and others - 1977 E.L.T. (J 166) and the appellate judgment in the same case reported in 1978 E.L.T. (J 630.) In so far as the order of the Respondents are concerned, no fault can be found therewith, inasmuch as the application for refund made by the company was actually time-barred, having been presented, as already stated, beyond six months of the payment of duty so that the Customs authorities were bound to reject it in pursuance of the provision of section 27 of the Act. Our attention was drawn to the decision of the Supreme Court reported in Madras Rubber Factory v. Union of India, A.I.R. 1976 S.C. 638, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des, while for claiming refund of any duty paid by an assessee/importer in pursuance of an order of assessment made by an officer of Customs lower in rank than an Assistant Collector of Customs the assessee/importer may make an application for refund of such duty to the Assistant Collector of Customs, the remedy for challenging assessment made by the Assistant Collector of Customs under sub-section (2) of section 28 of the Act, consequent to less charge demand issued under sub-section (1) of section 28 of the Act, was an appeal. The issue of less charge demand under section 28(1) of the Act could not extend the limitation fixed by section 27(1) of the Act, we reject this argument/contention. 22. It has also been urged by the appellants that the assessment should be deemed to be completed on 18-11-1978 when the matter relating to short levy was closed and that the appellants came to know the exact duty charged on this day only, and for this reason, the application for refund was well in time. The appellants intend to say that the time for making an application for refund began running only from 18-11-1978 when the less charged demand was withdrawn and assessment deemed to be com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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