1. Appeal under Section 129 A of the Customs Act, 1962 praying that in the circumstances stated therein, the Tribunal will be pleased to order refund of the duty paid on short shipped goods.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri 8. Padmanabhan, Advocate for the appellants and upon rearing the arguments of Shri S.K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following: 3. Aggrieved by the order No. C3/19I3/76 dated 5.5.77 passed by the Appellate Collector of Customs, Madras, the appellants riled a revision application before the Government of India which has been transferred to the Tribunal to be heard as an appeal in terms of Section 131B of the Customs Act, 1962.
4. By his order No. Section 25/798/73 (Supplementary) dated 6.5.76 the Assistant Collector of Customs, Refunds, Madras rejected a claim for refund of duty in respect of 32 Nos. valves and 32 Nos. 'O' rings said to have been found short in a consignment covered by Bill of Entry No.D 93 dt. 3.10.72 as barred by limitation under Section 27 of the Act.
An appeal against this order was rejected by the Appellate Collector of Customs, Madras vide his order referred to supra.
5. In the appeal before us it is contended by the advocate for the appellants that a claim in respect of refund of duty paid under Bill of Entry D. 93 dated 3.10.72 had been made on 6.3.73 itself; in that the ground of claim was given as the lower rate of duty applicable to the tyres imported in the consignment covered by the Bill of Entry. On 7.4.73 the appellant-company had written to the Assistant Collector of Customs urging a second ground. He contended that the letter of 7/9.4.73 is a continuation of the claim made on 6.3.73 and hence is within time, the duty having been paid on 3.10.72. In support of this contention he referred to the decision of the Chief Court of Oudh in the case of Commissioner of Income-tax, V.P. & C.P. v. Behari Loll Ramachandra I.T.R. 417pages 421 and 422).
6. It would be useful to set out at length the applications of March and April 1973 relied on by the appellant. The first application reads as follows : We wish to lodge this claim for refund of excess paid duty as explained hereunder : ______________________________________________________________________________________ A. 1.
Name of the vessel : STATE OF MADRAS G.M. No. : 629/72.
3. Description of goods covered by 32 Nos. Earthmover tyres.
B/E: 4. Name of (a) Importers : Bharat Earth Movers Ltd. Bangalore17.
Name of (b) clearing agents : M/s. South India Corpo- ration (A) P. Ltd., Madras 5. Amount of refund claimed : Rs. 1,86,949.36 _________________________________________________________________________________________ 6. Grounds of claim: The tyres imported are to be used for the purpose of manufacture/assembly of Dumpers. Hence these tyres are correctly assessable to duty at 60% + 10/, RD plus 20% C.V. under Government of India Notification No. 101 dated 26.8.72 and the excess collected duty maybe refundable to us. The certificate under Notification No. 101 dated 26.8.72 is enclosed herewith. The end use affidavit is available in our file No. BEML/MO/EM-558/ 1017 dated 6.3.73 C.V. is payable at 20% as tyres "not otherwise specified" since dumpers are conveyance and not Motor Vehicles which attracts c.v. at 50%.
4. Certificate under Government of India, Ministry of Finance, Department of Revenue and Insurance duly signed by MD. Further to our claim under reference (i) above, kindly add the following under Ground No. II. 32 Nos. Valves and 32 Nos. 'O' Rings were found short in the subject consignment. The duty paid on the shortages is refundable to us.
It will be noted from the letter of 6.3.73 that not only the basis of the claim has been set out in para 6 but the amount of refund claimed has also been indicated in para 5. This amount obviously does not include that due to the additional ground referred to in the letter of 7/9.4.73. Further the so-called second ground introduced by the letter of 7/9.4.73 has no connection with the ground contained in the letter of 6.3.73. It is entirely a different ground. Merely by the device of calling the first as Ground I and the second as 'ground II', it cannot be accepted that the first letter was intended to be a claim in respect of all the errors and omissions that might have taken place in the assessment of Bill of Entry D. 93 dated 3.10.72. A claim in respect of shortages is a distinct and a different one from the one in respect of assessment; it has not also been included in quantifying the amount of refund claimed in the letter of 6.3.73.
7. The case cited by the advocate for the appellants is not one regarding a claim for refund. It was in relation to certain grounds cited in support of an appeal. The Court held that citing: further grounds in support of the same appeal without modifying it substantially is permissible. As we have noticed earlier, in the present case what was claimed in the first instance is totally different from the claim introduced in April 1973. It is not as if there is one main issue in respect of which same points were urged in March and others in April. The case cited by the advocate for the appellants is thus distinguishable from the present one. On the basis that the (claim in respect of short-shipped goods was made only on 9.4.73 it is clearly barred by limitation. The appeal is accordingly dismissed.