TMI Blog1978 (6) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... and the revisional order passed under section 131 of the Customs Act by the Joint Secretary, Government of India, Ministry of Finance, dismissing the revisional application are under challenge. 2. The case of the petitioner company in short is that the petitioner had been carrying on the business of manufacturer of rubber tyres and in course of its said business the petitioner had to import Insoluble sulphur under the trade name "Crystex N-Insoluble Sulphur" in bulk quantities since required for the manufacture of rubber tyres. The petitioner contends that Sulphur including the "Crystex N-Insoluble Sulphur" falls under Item No. 28(3) of the Indian Customs Tariff and by notification issued by the Government of India, dated August 20, 1965 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to show cause why the said appellate order of refund should not be annulled but ultimately the said notice was withdrawn by the Government of India and the appellate order or refund remained in force. The petitioner contends while the aforesaid proceedings for refund were pending, other consignments also arrived and the Custom authorities, as before, wrongfully and without jurisdiction levied duty on all the said goods on the ground that the goods fell under item 28 of the Indian Customs Tariff. The petitioner in order to avoid demurrage had also to pay the duty and the total duty paid was Rs. 23,214.09 P. in aforesaid, excepting in respect of two items of goods, the petitioner did not receive any order of refund but the petitioner subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability of the petitioner to pay duty in respect of the goods in question and, as a matter of fact, in respect of ealier two consignments, the petitioner had preferred claims for refund and also preferred appeals against the order to avoid payment of demurrage, the petitioner had to pay the duty but as the petitioner had been perusing the aforesaid proceedings for refund in respect of the earlier consignments, it must be held that the petitioner had been claiming all through that the petitioner was not liable to pay any duty in respect of the goods in question and payment of duty in order to avoid demurrage, in the aforesaid facts and circumstances, must be held to be payment under protest within the meaning of Section 27 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l India (Private) Limited was entitled to refund in respect of all the items in respect of which excess duty was realised. Relying on the aforesaid decision, Mr. Ray contended that although legal proceeding were taken by the petitioner in respect of earlier two consignments and against the order of rejection of the claim of the petitioner, appeals were also preferred in respect of the said two consignments, the petitioner is entitled to claim in respect of the said two consignments, the petitioner is entitled to claim refund in respect of all the other item in view of the fact that admittedly the Customs authorities had unlawfully realised Customs duty from the petitioner in respect of all the said consignments. Mr. Ray contended that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions in respect of two consignments, the petitioner cannot ipso facto claim that other subsequent payments of duty were also made under protest. Mr. Banerjee further contended that it is immaterial to consider in the present application as to whether the petitioner is entitled to claim for refund because even assuming that petitioner was entitled to claim for refund such claim was barred by limitation. Mr. Banerjee further submitted that payment in respect of each Bill of Entry constituted separate cause of action and unless protest was made for payment made in respect of each of such consignments, it cannot be held that the petitioner made payment under protest within the meaning of proviso to Section 27 of the Customs Act. In my view, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
