1. Engineering Projects (India) Ltd., 50, Chowringhee Road, Calcutta- 700071 has filed an appeal being aggrieved from Order No.CAL.CUS.1563/83, dated 2nd August, 1983 passed by the Collector (Appeals), Calcutta.
2. Briefly, the facts of the case are that the appellant had imported 172 pieces Alinabal Spherical Bearings duly packed in one box per s.s.
Jalakendra, Rot. No. 391/81, Line No. 92 and had paid entire duty amounting to Rs. 43,093.06 vide bill of entry No. DI-530, dated 12th November, 1981. It was found that the entire cargo had short landed as per Calcutta Port Trust B Form No. C-23/7, dated 30th December, 1981 and the clearing agents Lee & Mui Chead (India) Pvt. Ltd. had filed a refund claim before the Assistant Collector of Customs for Manifest Clearance Department, Calcutta requesting a refund of Rs. 43,093.06 on the ground that the said box has short landed. The said claim was received in the Custom House by the Manifest Clearance Department on 25th January, 1982. The appellant had also filed another refund application on the 25th January, 1984 vide letter No. SHP-69/211-129 which was received by the Manifest Clearance Department on the 28th January, 1982. With the said refund application, the appellant had duly attached the copy of invoice, Bill of lading, B Form and triplicate copy of bill of entry No. DI-530, dated 12th November, 1981. The said refund claim was duly acknowledged and registered by the Customs Authorities vide File No. S-10(1)-61/82MCD and the appellant was intimated the same vide letter No. S-10(1)-61/ 82 MCD, dated 15th March, 1982. Subsequently, it was discovered that the short landed consignment was actually seized by the Customs authorities from the vessel before the landing could have taken place along with other consignments. The seized goods were confiscated by the Customs authorities, but were released on payment of redemption fine of Rs. 500/- vide order No. SI(VII)/83/ dated 2nd April, 1982 passed by the Assistant Collector of Customs for preventive (Adjudication), Custom House Calcutta. The steamer agents had offered the released goods in loose condition after the expiry of six months. The appellant had again to go through the process of clearance under T-343 formalities and insurance survey was arranged before the delivery of the goods and 59 pieces of bearings were found short. Thereafter, the appellant had filed a revised claim for Rs. 14,809/- on actual basis on the basis of insurance survey report vide letter No. SHP-69/211-129, dated 10th January, 1983 which was received by the Customs authorities on 17th January, 1983 in continuation of their earlier claim for Rs. 43,093.06.
The revenue authorities did not consider the original application of the appellant and on the basis of subsequent refund application dated 10th January, 1983, the learned Assistant Collector of Customs had rejected the appellant's claim for refund being hit by limitation from the date of payment of duty viz., 12th November, 1981. The appellant did not accept the order passed by the learned Assistant Collector of Customs and had filed an appeal to the learned Collector (Appeals). The learned Collector (Appeals) did not accept the contention of the appellant and had rejected the claim on the ground that the original claim was filed for refund of duty on account of shortlanding and the subsequent revised claim was filed on account of survey shortage. The learned Collector (Appeals) had observed that since the refund claim was not filed within six months from the date of payment of duty, the claim was time-barred under Section 27(1) of the Customs Act, 1962 as the character of the claim was changed. Being aggrieved from the aforesaid order, the appellant has come in appeal before this court.
3. Shri Radha Kanta Sen, the learned advocate with Shri Dilip Kumar Chakrabarty, the learned advocate has appeared on behalf of the appellant. He has reiterated the facts. The learned advocate has pleaded that the original claim was filed by the clearing agents as well as the appellant on 22nd January, 1982 and 25th January, 1982 which was registered with the Custom House vide file No. SI0(1)61/82 MCD. The learned advocate has pleaded that subsequent claim was in continuation to the original claim and the earlier refund application is still pending. He has referred to the provisions of Section 27(1) of the Customs Act, 1962 and has pleaded that the legislature has used the word 'claim' and the word 'claim' has not been defined under the Customs Act. He has pleaded that any duty paid by the appellant which is in excess may be due to shortlanding or due to survey shortage, is a claim. He has also pleaded that there are similar provisions under the Indian Railways Act, 1890. He has referred to Section 78B of the Indian Railways Act, 1890 is reproduced as under :- "78B. Notification of claims to refunds of over charges and to compensation for losses. - A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non-delivery of animals or goods delivered to be carried unless his claim to the refund or compensation has been preferred in writing by him or on his behalf - (a) to the railway administration to which the animals or goods were delivered to be carried by railways, or (b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within six months from the date of the delivery of the animals or goods for carrige by railway.
Provided that any information demanded or enquiry made in writing from, or any complaint made in1 writing to, any of the railway administration mentioned above by or on behalf of the person within that said period of six months regarding the nondelivery or delay in delivery of the animals or goods with particulars sufficient to identify the consignment of such animals or goods shall, for the purposes of this section be deemed to be a claim to the refund of compensation".
The learned advocate has pleaded that the wordings of Section 27(1) of the Customs Act, 1962 and Section 78B of the Indian Railways Act, 1890 are similar and in both the sections, the word 'claim' has been used but has not been defined. He has pleaded that it should be taken a wider sense and the Collector (Appeals) has made an error in holding that the character of the claim was changed. The learned advocate has again argued that the subsequent application of refund is the continuation of original application which was filed before the expiry of six months from the date of payment of duty. He has pleaded for the acceptance of the appeal. Alternatively, he has pleaded for the remand of the appeal.
4. In reply, Shri A.K. Sarkar, the learned Senior Departmental Representative has pleaded that the provisions of Section 27(1) of the Customs Act, 1962 are mandatory and has stated that the subsequent refund application was hit by limitation and there is no relevancy between the two refund applications. He has referred to Sub-section (4) of Section 27 of the Customs Act, 1962. He has pleaded that the order passed by the Collector (Appeals) is in order, and the appeal filed by the appellant should be dismissed.
5. In reply, Shri Sen, the learned advocate, has again reiterated the arguments and has pleaded for acceptance of the appeal. Alternatively, he has pleaded for remand of the case.
6. After hearing both the sides and going through the facts of the case, I observe that the short point which calls for determination here is whether the claim which was filed on 17th day of January, 1983 could be considered as a fresh claim so as to fall within the mischief of Section 27(1) of the Customs Act, 1962. In this context, I observe that the original refund claim which was filed on 25th January, 1982 for a total amount of Rs. 43,093.06 on account of shortlanding was well within six months from the date of payment of duty and that claim was pending all along before the original authority. The subsequent refund claim which was filed on 17th January, 1983 has to be treated as continuation of the original claim. Accordingly, I hold that the appellant had filed the refund application within the statutory period as provided under Section 27(1) of the Customs Act, 1962. The subsequent refund application is in continuation to the earlier refund application dated 25th January, 1982 which was filed within time.
Accordingly, I hold that the original refund application filed by the appellant was within time and the subsequent application dated 10th January, 1985 was continuation to the original claim and further clarifies the refund claim and quantities the amount of Rs. 14,809/-.
The revenue has not computed the refund amount at Rs. 14,809/-.
Accordingly, I remand the case to the Assistant Collector, Manifest Clearance Department with a direction to compute the correct amount of refund and pay to the appellant within three months from the date of this order after making necessary verification as to its payment.