METALLURGICAL AND ENGINEERING CONSULTANTS (INDIA) LTD. Vs. COLLECTOR OF CUSTOMS, W.B. CUSTOMS COLLECTORATE

JUDGEMENT

(1.) IN this reference under Section 130(3) of the Customs Act, 1962 the following questions of law have been referred to this Court: 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the claim having been preferred after six months the application for refund was not maintainable and in that view dismissing the appeal?

(2.) WHETHER , on the facts and in the circumstances of the case, the Tribunal misdirected itself in law in not directing the authorities to produce the relevant bill of entry to show whether the duty was paid under protest or not and in not considering the bill of entry lying under the custody of Customs Authorities?

(3.) WHETHER , the finding and conclusions of the Tribunal in absence of the bill of entry, with regard to the question of limitation of the application for refund and consequential dismissal of the appeal are unreasonable and perverse? 2. The brief facts of the applicant's case were that on receipt of the consignment at the Air Cargo Complex an insurance survey was conducted wherein a shortage of 10 small cartons containing 100 reels of magnetic tape cannisters was detected and the opinion of the Surveyor was that they were not shipped in the subject consignment by the consignor's shipping agent. However, the consignment was taken delivery of, on an open appraisement by the Customs Officials and the shortage as referred to was duly recorded on the original copy of the bill of entry, for the consignment. It was also the case of the applicant that the customs duty was paid under protest. Therefore, the time -limit of six months under Section 27 of the Customs Act, 1962 will not apply to the facts of the case. 3. The date of payment of duty was 5th August, 1982 and the date of application for refund made by the applicant was 6th May, 1983. The Assistant Collector of Customs in order No. S109 -78/83ARS dated 26th July, 1983 rejected the claim as time -barred. Against that order the applicant preferred an appeal to the Collector (Appeals), Customs House, Calcutta. The learned Collector (Appeals) rejected the above appeal by his order No. Cal -Cus -766/84 dated 19th March, 1984. Against that order the applicant preferred an appeal to the Tribunal in Appeal No. C -100/85 Cal and the Tribunal by its Order No. 43/Cal/1990 -43 dated January, 1990 rejected the appeal. 4. It was contended before the Tribunal that the payment of duty was made under protest. But the Tribunal held that there was nothing mentioned in the orders passed by the lower authorities to show that this plea was taken before the authorities. The Tribunal perused the refund application dated 23rd April, 1983 and observed that there was no mention made in the application that the duty was paid under protest. The Tribunal also held that if actually the duty was paid under protest the same would have been mentioned in the refund application. In such circumstances, the Tribunal held that since the application was preferred beyond the period of six months the same was rightly rejected.