Customs, Excise and Gold Tribunal - Delhi
Oil And Natural Gas Commission vs Collector Of Customs on 22 December, 1987
Equivalent citations: 1988ECR105(TRI.-DELHI), 1988(34)ELT248(TRI-DEL)
ORDER D.C. Mandal, Member (T)
1. The appellants imported a consignment of Casing (Steel pipes) under Bill of Entry No. DI 1147 dated 25.11.1980. The goods were assessed to duty under Tariff Heading 73.17/19 of the First Schedule to the Customs Tariff Act, 1975 at the rate of 40% ad valorem plus countervailing duty at the rate of Rs. 175/-per M/Ton. On 29.4.1981, the appellants' Clearing Agents M/s. B.G. Somadder & Sons filed an application claiming refund of c.v. duty amounting to Rs. 1,08,290.01 paise on the ground that c.v. duty was exempted under Notification No. 196/76-Cus. Subsequently, on 21.9.1981 the importers made another claim for refund of Rs. 7,33,540.43 on the ground that the goods were of Rumanian origin and under Notification No. 342/76-Cus., dated 2.8.1976, goods of Rumanian origin were exempted from 50% of the standard rate of duty. The claims Were rejected by the Assistant Collector of Customs on the ground that (1) the goods, though covered by Notification No. 197/76-Cus., have been correctly assessed to c.v. duty under Tariff Item 26-AA of Central Excise Tariff, which is specific for these goods and (ii) the second claim dated 21.9.1981 was time-barred under Section 27 of the Customs Act as the claim was received after expiry of statutory period of six months. On appeal filed, the Collector of Customs (Appeals), upheld the order of the Assistant Collector. The present appeal is against the said order-in-appeal passed by the Collector of Customs (Appeals), Calcutta.
2. We have heard Shri Kakar for the appellants and Shri Sundar Rajan for the respondent. Shri Kakar has stated that the pipes of Rumanian Origin assessed under Tariff Heading 73.17/19 of C.T.A. 1975 attracted a concessional rate of 50% of the standard rate of duty in terms of Notification No. 342/76-Cus., dated 2.8.1976. As the country of origin was stated in the relevant column of Bill of Entry, assessment should have been made at that concessional rate. He has also stated that Section 27 of the Customs Act does not debar the refund of duty, paid in excess of what was actually due. He has relied on the decision of this Tribunal reported in 1985 (16) E.L.T. 419 (Premier Tyres Limited v. Collector of Customs, Madras) in support of his plea that the ground of claim could be changed subsequently without attracting limitation under Section 27 of the Act. Shri Sundar Rajan has argued that the appellants were not entitled to change the ground of refund claim from countervailing duty to preferential rate of basic customs duty. He has relied upon the judgments reported in 1983 E.L.T. 166 (Tribunal), 1983 E.L.T. 361 and 1984 (15) E.L.T. 417.
3. In the case of SAP Industries, Bombay v. Collector of Customs, Bombay (1983 E.L.T. 166) it was held by this Tribunal that filing a refund claim within the prescribed time limit is a statutory requirement under Section 27 of the Customs Act. In Food Corporation of India v. Collector of Customs, Madras (1983 E.L.T. 361) it was held by this Tribunal that the appellants shifted their stand with regard to the inspection charges and that amounted to a fresh claim and was hit by limitation under Section 27 of the Customs Act. Again, in the case of Food Corporation of India v. Collector of Customs, Madras [1984 (15) E.L.T. 417], this Tribunal held that grant of refund is governed by Section 27 of the Customs Act and this Section provides a limitation period. The appellants could not claim a higher refund at the stage of appeal before the Tribunal as compared to what they claimed before the Assistant Collector. It was also decided by the Tribunal in 1983 E.C.R. 944 (M/s. Indian Telephone Industries Limited, Madras v. Collector of Customs, Madras) that as no claim for re-assessment of basic customs duty was made by the appellants within six months of importation as required under Section 27 of the Customs Act, they could not be allowed to make an entirely new claim at a late stage.
4. Regarding the judgment of this Tribunal in the case of Premier Tyres Limited, we are to observe that the same does not help the appellants to change the ground of claim for refund after expiry of the period of limitation. In the said case, the Tribunal held that an amendment to the refund claim could be made after expiry of limitation period under Section 27 of the Customs Act, 1962 if there was a change in the classification of the goods. In the present case, there is no change in the classification. The appellants initially claimed refund on account of countervailing duty within the period of limitation. Subsequently, after the expiry of the statutory period of six months prescribed in Section 27 of the Customs Act, they sent another application claiming concessional rate of basic customs duty under Notification No. 342/76-Cus., dated 2.8.1976. In the said case, the Tribunal also held that an amendment in a claim could be made even after expiry of limitation period if it was necessary for the purpose of determining the question in controversy and if it did not introduce a new cause of action or raise a different case. In the present case, the controversy in the original refund claim was regarding the levy of countervailing duty. The subsequent claim under letter dated 21.9.1981 was not necessary to determine the controversy over countervailing duty. In the second claim, the appellants made out a different case. Further the Tribunal also held in that case that the Tribunal had no power to waive or relax the period of limitation prescribed under Section 27 of the Act.
5. The appellants submitted the second claim dated 21.9.1981 on a ground different from that of the first refund claim. This was a fresh claim and it cannot be stated that it was filed in amplification or clarification of the first claim. The second claim was received after expiry of six months from the date of payment of duty. Oil and Natural Gas Commission is not a Government Department. It is also not an educational, research or charitable institution or hospital. The time-limit of six months prescribed in Section 27 of the Customs Act was applicable in this case. As the fresh claim on the ground of concessional rate of duty under Notification No. 342/7 6-C us., dated 2.8.1976 was received after expiry of the statutory time-limit of six months, this claim was barred by limitation under Section 27 of the Act. This time-limit is mandatory and could not be relaxed by the customs authorities. In the case of Miles India Limited v. Assistant Collector of Customs, reported in 1985 (30) E.L.T. 641, it was held by the Hon'ble Supreme Court that the customs authorities, acting under the Act, were justified in disallowing the claim for refund as they were barred by the period of limitation provided, therefor under Section 27(1) of the Customs Act, 1962. In view of this judgment of the Supreme Court, this Tribunal has been consistently holding that the refund claims not preferred within the statutory period prescribed under Section 27 of the Customs Act should be rejected as barred by limitation under that Section.
6. The orders passed by the lower authorities do not suffer from any infirmity and as such, the same are to be upheld. Following the Supreme Court's decision in the case of Miles India, we, therefore, dismiss this appeal and confirm the impugned order.
S. D. Jha, Vice President
7. The first claim for refund dated 29.4.1981 was for a definite amount of Rs. 1,08,219.01. The next claim dated 21.9.1981 was. for Rs. 7,33,540.43 P. The first claim was not a claim for pure and simple re-assessment and consequent refund but for a definite amount. Considering this, the lower authorities were justified in treating the claim dated 21.9.1981 presented beyond six months as barred by limitation. The Tribunal decision in Premier Tyres Lirnited's case [1984 (16) E.L.T. 419] would not help the appellants. I agree with brother Mandal that the appeal should be dismissed.