Customs, Excise and Gold Tribunal - Mumbai
Mmtc Ltd. vs Collector Of Customs on 13 March, 1992
Equivalent citations: 1993(43)ECC65, 1993ECR635(TRI.-MUMBAI), 1995(75)ELT895(TRI-MUMBAI)
ORDER P.K. Desai, Member (J)
1. This appeal is directed against the order-in-appeal No. 1997/89 BCH, dated 21-12-1989 confirming the order-in-original No. S/8-1-1625/88M, dated 14-12-1988 refusing the appellants' claim for refund of the duty amount to the tune of Rs. 75,784/-. The Asstt. Collector rejected the claim on the ground that the shortage was noticed after Bonding in warehouse as indicated in the survey report. The Collector (Appeals) however allowed the appeal holding that the survey was not conducted within 48 hours of the landing and for this purpose, he relied upon the judgment of the Bombay High Court (not specifying exactly what judgment he was referring to). He also held now that, it was not possible to raise the claim under Section 116 of the Customs Act, the appellants were not liable to get the refund.
2. The goods landed on 25-5-1988 and the survey was conducted on 16-6-1988 and the order under Section 47 was passed on 29-8-1988.
3. Shri Joshi, the ld. Advocate for the appellants submitted that besides the survey report, there was also a certificate issued by the Collector of Customs, Docks on 16-6-1988 certifying shortage to the extent of 109 kgs, with a specific mention therein that the survey was held before the customs out of charge order. He also submitted that the survey conducted by an approved surveyor was also a joint survey where the officers of the customs were also associated. He therefore pleaded that the approach taken by both the authorities below was not proper, and Section 23 of the Customs Act clearly became applicable. In his submissions, the Collector (Appeals) seems to have referred to one decision of the Bombay High Court which presumably pertained to carry out the survey for the purpose of raising demand under Section 116 of the Customs Act in relation to the receipt of the consignment in the container and was not therefore, applicable to the facts of the present case.
4. Shri Singh, the ld. JDR while supporting the order pleaded that the survey was not conducted within 48 hours and that therefore the department was not in a position to claim the duty from the Shipping Company by virtue of Section 116 of the Act and that there was no cogent reasons shown as to why delay had occurred in getting the survey done.
5. Considering the submissions made and perusing the record, there is a certificate issued by the Asstt. Collector, Docks clearly indicating that the survey was held before the customs out of charge order and that there was a shortage to the extent of 109 kgs. When the competent authority under the Customs Act has issued a clear certificate, both in relation to the shortage and also in relation to the survey conducted before out of charge order, the refund claim was entertainable vide Section 23 of the Customs Act. Merely because the survey was not conducted within 48 hours, would not come in the way of the claim of the refund. In the light of the fact, that the Customs Officers were associated in the survey and besides that the competent authority has issued a certificate dated 16-6-1988 the approach of those authorities is not justified. When the Collector (Appeals) has vaguely referred to some decision of the Bombay High Court, it is not possible for me to know which decision he has actually intended to refer to. But even then, each decision depends on the facts of the particular case. It is not possible for me to ascertain whether the facts were identical to the case here and whether the certificate was issued by the departmental authorities on the lines as indicated above. The approach of the authorities below does not appear to be in conformity with the provisions of law and hence cannot be sustained. In the result, the appeal is allowed. The orders of the authorities below are set aside and the department is directed to consider the claim on merits and pass appropriate order according to law. Consequential relief to follow.