TMI Blog1993 (7) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... ted items was not detected. The imported goods were assessed for duty under Item No. 72(3)/72B of Indian Customs Tariff at 40% ad valorem by Bill of Entry dated April 20, 1976 and the petitioners paid a sum of Rs. 13,66,101.60 as customs duty for import of consignment. The cases were thereafter opened and inspected by the Chief Engineer of the Dredger and it was revealed that certain items mentioned in the packing specifications furnished by the foreign suppliers were short landed. 2. Having realised that the requisite spare parts were not available in 61 packages, the petitioners sought a supplementary licence for import of the short landed items. The supplementary licence was granted and the petitioners imported the items which were mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting the refund application on the ground that refund ought to have been sought in respect of duty paid on April 20, 1976 and refund in respect of duty paid on December 8, 1976 was not maintainable. Shri Presswalla complained that the authorities below were also in error in holding that in case the application was made for refund in respect of duty paid on April 20,1976, then the application was barred by rule of limitation prescribed under Section 27 of the Customs Act. It was urged on behalf of the petitioners by reference to the decision of Single Judge reported in 1987 (31) Excise Law Times 685 (Escorts Tractors Ltd. v. Union of India and Others) that the refund application in respect of duty paid in December 1976 was perfectly mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission of the learned counsel. The justice demands that the application for refund should be treated as application in respect of duty paid in April 1976. There is no dispute between the parties that duty was recovered in April 1976 even in respect of short landed goods and in respect of which the petitioners were not liable to pay any duty. It is now well settled that in case the duty is recovered in respect of items which are not even imported, then the bar of Section 27 of the Act will not be attracted. In our judgment, in the facts and circumstances of the case, it is necessary to treat the application for refund dated January 22,1976 as one in respect of duty recovered in April 1976 and as the bar of Section 27 has no application, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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