1. This appeal arose out of and is directed against the order No.Cal/WB/52/ 81 dated 22.6.81 passed by the Appellate Collector of Customs, Calcutta in Order (Original) No. Section 10(3) 338/81M dated 30.5.81 passed by the Asstt. Collector of Customs by which he rejected the appellants' claim for refund as being barred under Section 27(1) of Customs Act, 1962.
2. The facts necessary for the disposal of this appeal are few and simple and they are not in dispute. A carton containing spares for industrial sewing machine was imported by the appellants. Even though the steamer carrying the consignment arrived on -4.5.79 the Bill of Entry was finalised and duty was paid only on 1.4.80. It appears that there was a wrong delivery of this carton to M/s-Hindustan Steel/ Ltd. by Calcutta Port Trust. After a long lapse of time after the payment of duty the appellants were able to trace the carton and it was delivered to them on 31.3.81, but it was found in damaged condition. The Port and Steamer Survey were not granted as such survey was time-barred.
Therefore, there was insurance survey. During the insurance survey the appellants could know that there was loss of certain number of spares.
Therefore, on 21.4,81 they lodged their claim for refund. The same was rejected by the Asstt. Collector of Customs for M.C.D. as well as by the Appellate Collector and as such the appellants preferred revision application before the Central Government and that revision stood statutorily transferred to this Bench after the constitution of this Tribunal.
3. During the hearing of the appeal, Shri K.D. Mukherjee the authorised representative of the appellants, contended that the rejection of the refund claim on the ground of limitation is erroneous and that the authorities below have failed to take into consideration that immediately after coming to know of the short delivery, the appellants had made the claim and, therefore, the claim is within time. They, therefore, prayed for setting aside the orders of the Asstt. Collector as well as the Appellate Collector.
4. The short question for consideration is whether the order passed by the Asstt. Collector and confirmed by the Appellate Collector suffers from any illegality and whether the orders are unjustified in the circumstances of the case.
5. Admittedly, the duty was paid on 1.4.80. There is no material placed either before the Asstt. Collector or before the Appellate Collector or even before us that the goods are pilfered after the unloading thereof and before the proper officer lias made an order for clearance for home consumption. Therefore, Section 13 of the Customs Act, 1962 is not attracted. Section 23 also cannot be pressed into service because after the goods landed there has been clearance. Hence it is not a case where the loss was before the clearance for home consumption. As the claim does not relate to export, Section 26 also has no application. Section 27 is very clear and it provides that any person claiming refund of any duty paid by him, shall have to make an application for refund of such duty to the Asstt. Collector of Customs before the expiry of one year in case of an individual and before the expiry of six months from the date of payment of duty in the case of others. The appellants is a Company. Therefore, the period of limitation is six months from the date of payment of duty. Since the duty was paid on 1. A. 80 the claim for refund made on 21.4.81 is hopelessly barred by imitation prescribed in Section 27(1) of Customs Act, 1962. In the circumstances, we see no reason to hold that the order passed by the Assistant Collector and affirmed by the Appellate Collector is either illegal or unjustified.