1. In this case, the appellants' claim for refund of Customs duty in respect of short-landed goods, has been rejected on the ground of time bar under Section 27 of the Customs Act '62.
2. The appellants stated that in this case, they filed a prior entry Bill of Entry and paid duty on the goods. But the goods did not arrive by the particular vessel s.s. Export Adventure as the consignment was over-landed at Colombo, port and was transhipped by a different vessel s.s. Export Agent. They paid the Customs duty again on the consignment.
This resulted in, double payment of duty on the same consignment and that is why they were asking for refund of the duty paid initially when no goods actually came. They added that in similar cases, refunds were sanctioned by the Govt. of India earlier, without regard to any time bar and therefore, it was not just to invoke the time bar now for their claim.
3. The department's representative stated that the claim for duty lay against the first payment made on 21.2.77 and since the application for refund was received by the Asstt. Collector on 21.11.78, it was barred by limitation under Section 27 of the Customs Act 1962.
4. We have carefully considered the matter. It is not in' dispute in this case that no goods were imported against the first payment made on 21.2.77 for which the appellants seek refund. When no goods are imported at all into India, there is no question of the provisions of the Customs Act '62 coming into play and the money paid in such a situation cannot be termed as 'customs duty'. Consequently, such payments have to be treated as deposits with the government refund which would be governed not by the provisions of Section 27 of the Customs Act '62 but the common law of limitation.- Refund was claimed in this case within two years from the date of payment. We, therefore, hold that the appellants' claim is not time-barred under Section 27 and remand the case to the Appellate Collector for a fresh decision on merits of the appellants" claim.