SABARI EXIM PVT. LTD. Vs. COMMISSIONER OF CUS.

JUDGEMENT

(1.) THIS appeal is against rejection, by the lower authorities, of a claim made by the appellant for "refund" of an amount paid by them as demurrage to the Chennai Port Trust. The demurrage charges had been paid on 8 -6 -2002 and 10 -6 -2002. The claim for refund was filed on 23 -5 -2003. On these facts, both the lower authorities held the claim to be time -barred under Section 27 of the Customs Act.

(2.) AFTER examining the records and hearing both sides, I find that the appellant had imported a consignment of what was declared as "Re -Rollable Non -Alloy Steel Scrap". They filed Bill of Entry dated 7 -6 -2002 for warehousing the goods. The Customs authorities doubted the correctness of the importer's declaration and got samples of the goods tested by the National Metallurgical Laboratory (NML). The test report of NML was to the effect that the goods could be considered as a mixture of "usable Alloy and Non -Alloy Steel Tubes/Pipes". On the basis of this report, the Customs authorities refused to grant the benefit of concessional rate of duty claimed by the importer. At this juncture, the party asked for re -test of samples of the goods by Indian Institute of Technology (IIT), Chennai and as also by M/s. SGS India Pvt. Ltd. Both these agencies certified the goods to be "Non -Alloy Steel Re -Rollable Scrap", on which basis the Customs authorities permitted the importer to bond the goods. The goods were accordingly bonded on 10 -6 -2002. Subsequently, on 27 -6 -2002, the goods were ex -bonded and cleared for home consumption. Meanwhile, the importer had to pay the above demurrage charges to the Port Trust.

(3.) LD . Consultant fairly concedes that the provisions of Section 27 of the Customs Act are not applicable to a refund claim of this kind inasmuch as those provisions relate to claims for refund of duty and interest thereon. However, he argues that the appellant is entitled to refund of the demurrage charges from the Customs Department in terms of the Supreme Court's judgment in Shipping Corporation of India v. C.L. Jain Woolen Mills Ld. SDR opposes this argument and submits that refund of any amount paid to the Port Trust has to be claimed from them only. In his rejoinder, Id. Consultant points out that the appellant had applied to the Commissioner of Customs for a Waiver Certificate in respect of demurrage, but that application was not considered at all. It is submitted that Port Trust cannot be approached with an application for demurrage charges unless the Commissioner issues a Waiver Certificate. This submission is not contested.