INCHECK TYRES LTD Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) Incheck Tyres Ltd. the petitioner in these proceedings seeks to challenge three orders, being under No. S-85-4/72R dated 12th June, 1972 of the Assistant Collector of Customs (Refund), No. 1416 of 1973 dated 17th April, 1973, passed by the Appellate Collector of Customs, Calcutta and No. 1393 of 1974 dated 30th March, 1974 of the Joint Secretary, Government of India.

(2.) The facts leading upto the present proceedings are as follows : The petitioner is a company within the meaning of Companies Act, 1956 and carrying on business, inter alia, as manufacturers of rubber tyres. For the purpose of such manufacture it imports insoluble sulphur under the trade name 'crystex N-Insoluble Sulphur' (hereinafter referred to as the said product) in bulk quantities. Under a notification issued by the Government of India Ministry of Finance (Department of Revenue & Insurance) being Notification No. 120-Customs, dated 20th August 1965, sulphur including the said product was stated to be exempt from duty under Indian Customs Tariff.

(3.) In respect of a particular consignment of the said product imported by the petitioner and under Bill of Entry No. 894 and D.I. 929 dated the 20th and 21st November 1969 respectively. Duty was wrongly charged by the customs authorities under item 28 of the Customs Tariff at the rate of 60% ad valorem. To avoid demurrage, the petitioner paid the duty as levied and cleared the goods and applied before the Assistant Collector of Customs, Refund Section, Calcutta, the respondent No. 1 for refund. The said claim was rejected. Against the said order the petitioner preferred appeal to the Appellant Collector of Customs, who by his order dated the 12th July, 1971 set aside the order of the Assistant Collector of Customs holding that the goods in question were not chargeable to duty under item 28(3) of the Customs Tariff read with the said notification dated 20th August, 1965. The Customs authorities did not prefer any revision against the said order and the same became final. In the meantime on the 4th May, 1972 another consignment of the said product imported by the petitioner was landed under Bill of Entry No. D.I. 208 and duty on the same was again levied wrongfully under item 28. The petitioner cleared the said goods on payment under protest and applied for refund of duty paid being Rs. 46,605.63. The respondent No. 1 by his order dated the 12th June, 1972, rejected the petitioner's claim for refund. On or about the, 28th February, 1973 the petitioner made an application under Section 130 of the Customs Act, 1962 before the Collector of Customs, the respondent No. 3 for revisions of the said order, under notification No. 101-Cus., dated the 1st July 1974, the respondent No. 3 was empowered to revise any orders passed by officer subordinate to him under the Customs Act, 1962 except appellate orders passed under Section 128 of the said Act. The petitioner's grievance is that the Collector of Customs wrongly and without jurisdiction forwarded the same to the Appellate Collector of Customs, Calcutta, the respondent No. 2 to be dealt with as an appeal under Section 128 of the Customs Act, 1962. By his order dated the 17th April, 1973 the respon dent No. 2 rejected the said application holding that the same had been filled after the expiry of the time prescribed for appeals under Section 128 of the said Act.