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Sawant Fisheries Pvt. Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1983)(14)ELT2030TriDel
AppellantSawant Fisheries Pvt. Ltd.
RespondentCollector of Customs
Excerpt:
.....this tribunal to be disposed of as an appeal presented before it.2. the appellants as actual users imported nickel and nickel alloy as per b.e. cash no. 2043 dated 23-5-1980. the goods were classified under chapter 75 of the customs tariff and full duty realised from the appellants. at the material time exemption notification no.449/76-cus., dated 16-12-1976 gsr 926(e) was in force under which nickel powders and flakes falling within chapter 75 of the first schedule to the customs tariff act, 1975 when imported into india were exempt from payment of duty as was in excess of 40% ad valorem. it appears that the appellants and the department were both not aware of this notification. the appellants applied for refund of excess duty on 21-5-1981. the assistant collector of customs, air cargo.....
Judgment:
1. This is a Revision application to the Government of India against Order-in-appeal No. S/49-679/81-Air & 5 others dated 26-9-1981, passed by the Appellate Collector of Customs, Bombay, which stands transferred to this Tribunal to be disposed of as an appeal presented before it.

2. The appellants as actual users imported Nickel and Nickel Alloy as per B.E. Cash No. 2043 dated 23-5-1980. The goods were classified under Chapter 75 of the Customs Tariff and full duty realised from the Appellants. At the material time exemption Notification No.449/76-Cus., dated 16-12-1976 GSR 926(E) was in force under which Nickel powders and flakes falling within Chapter 75 of the First Schedule to the Customs Tariff Act, 1975 when imported into India were exempt from payment of duty as was in excess of 40% ad valorem. It appears that the appellants and the Department were both not aware of this notification. The appellants applied for refund of excess duty on 21-5-1981. The Assistant Collector of Customs, Air Cargo complex, Bombay Airport, Sahar Bombay by his order dated 10-6-1981 rejected the application on the ground that it was barred by limitation of 6 months stipulated under Section 27 of the Customs Act* 1962. The order was upheld in appeal by the Appellate Collector Of Customs, Bombay by his order dated 26-9-1981, hence the present appeal.

2. At hearing of the appeal, Sh. R.L. Mehta, learned Advocate for the appellants contended that the appellants had imported the goods for their personal use because the goods had been imported against "Actual Users' Licence" and limitation of one year set out in Clause (a) of Section 27(1) would be applicable in the case of the appellants.

3. Sh. Kunhikrishnan. Departmental Representative on behalf of the respondent defended the order passed by the Customs authorities.

4. Under Clause (a) of Section 27(1) of the Customs Act, 1962, a claim for refund is to be made before the expiry of one year in case of any import made by any individual for his personal use or by Government or by any educational, research or charitable Institution or Hospital.

Shri Mehta, learned Advocate during the arguments admitted that the appellants did not come in the category of Government or any of the Institutions named in the Sub-clause (a) of Section 27(1) of the Act.

He also admitted that the appellants are not an individual but a Company. But his contention was that because the appellants had imported the goods for their own use, the limitation of one year in the clause would apply in their case. This contention cannot be accepted. A reading of the clause (a) makes it clear that the words 'any individual for his personal use' refer only to a material person and not to.

juristic person like the appellant in the present case.

Shri Mehta made an attempt to show that the collection of amount from the appellants was without authority of law and therefore the time limit of 6 months set out in Section 27(1) (b) would not be applicable in the appellants' case and the limitation applicable would be 3 years under the General Law of Limitation. The Tribunal in a series of decisions has taken the view that the Tribunal was not competent to ignore the time limit set out in Section 27(1) of the Act, therefore, Sh. Mehta's this argument is rejected.

5. In view of the foregoing, there can be no doubt that the time limit applicable in case of the appellants would be that of 6 months set out in Clause (b) of Section 27(1) of the Act.

6. As a result of aforesaid discussion, the orders passed by the lower authorities are upheld and the appeal dismissed.

7. Neither the B/E nor the copy of the invoice were available to the Tribunal to know the precise description of the subject goods. However, from the Revision Application it is seen that "Nickel and Nickel Alloy" were imported and assessed under Chapter 75 without allowing exemption in notification No. 449/76-Cus., dated 16-12-1976 under which 'Nickel Powers and Flakes" falling within this Chapter were exempted partially.

The B/E is dated 23-5-1980 whereas the application for refund was filed on 21-5-1981. It is clear that the refund claim was dependent on a question of facts as well as law and it was, therefore, incumbent on the claimant to comply with the time-limit of 6 months stipulated in Section 27(l)(b) of the Customs Act, 1962. The question of the assessment being without the authority of law as argued by Shri Mehta, does not, therefore, arise. I fully concur with brother Jha's finding dismissing the appeal.


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