ELCON TRADING CO. LTD. Vs. CC NEW DELHI

JUDGEMENT

(1.) In this appeal filed by M/s Elcom Trading Co. Ltd., the issue involved is whether the refund claim filed by them was hit by time limit specified under Section 27 of the Customs act.

(2.) Shri S.M. Iqbal, ld. Consultant, submitted, that the Appellants had imported trinty base system with hardware, software and its accessories and filed bill of entry for its clearance on 16 -6 -98; that as per the direction of the Department, they paid customs duty of Rs. 3,42,788/ - by pay Order dt. 23 -6 -98 as advance custom duty as per procedure of the Respondents; that the Customs duty is payable as advance before examination of the imported goods; that in the course of examination of the consignment, it was noticed that the supplier had sent NTSC version instead of PAL version as ordered by them; that the consignment was re -exported on 2 -1 -99; that they filed the refund claim on 21 -12 -98 which was received by the Department on 24 -12 -98. The ld. Consultant, further, submitted that the claim for refund was not time barred as the goods were inspected by Customs Authorities only on 4 -6 -98 and the period of limitation cannot be said to have started running from 23 -6 -98 when the duty was deposited; that the general limitation of 3 years for claiming refund should have been made applicable as on examination the imported goods were decided to be re -exported; that the cause of action for refund arose on 1 -1 -99 when the goods were re -exported. I also heard Shri A.K. Jain, Ld. DR, who submitted that the Custom Authorities, being the creature of the statute are bound by the provisions of the Customs Act and they cannot apply the general limitation 3 years; that as the refund claim was filed beyond the period of six months from one date of payment of duty it was hit by time limit. He finally submitted that the duty was not collected in advance as the duty was paid only after assessment made on bill of entry. The examination of goods takes place generally after the assessment and payment of duty.

(3.) I have considered the submissions of both the sides. The facts which are not in dispute are that the duty was paid on 23 -6 -1998 as per the assessment made by the Competent Authorities. The payment cannot be treated as advance payment as under the customs procedure the assessment of bill of entry is completed on the basis of declaration made therein and the goods are examined subsequently. As refund claim was received by the Department on 24 -12 -98 it is time barred as it was filed after the period of 6 months form the date of payment of duty. The date of re -export of the goods is not relevant for computing the time limit as section 27 of the Customs Act clearly provides that any person claiming refund has to file claim before the expiry of six months from the date of payment of duty. It has been held by the Supreme Court in the case of Miles India Ltd. Vs. Assistant Commissioner of Customs 1987(30) ELT 64 (SC) that the officers exercising powers under the provisions of the Act and the Rules framed thereunder cannot ignore the provisions of the Act and the Rules. They are the creatures of the Statute. they are bound by the provisions of the statute. Similar views were expressed by the Supreme Court in the case of CCE Vs Doaba Cooperative Sugar Mills, 1998(37) ELT 478 (SC) in which it was held that in making claims for refund before the Departmental Authority, an assessee is bound within the four corners of the statute and the period of limitation prescribed in the Act and Rules must be adhered to. As the refund claim was filed beyond the period of six months I, find no reason to interfere with the impugned Order and the Appeal is, therefore, rejected.