Customs, Excise and Gold Tribunal - Mumbai
Tata Consulting Services vs Collector Of Customs on 3 January, 1990
Equivalent citations: 1990ECR68(TRI.-MUMBAI), 1990(49)ELT565(TRI-MUMBAI)
ORDER R. Jayaraman, Member (T)
1. This is an appeal directed against the order of the Collector (Appeals) bearing No. S/49-27/84 Misc. dated 28-2-1984.
2. Shri Nambiar requested for adjournment. However, after hearing Shri Mondal and perusing the records, we felt that the appeal can be disposed of without the presence of the appellants and accordingly we proceed to dispose of the appeal without granting the adjournment.
3. The undisputed facts are that the appellants imported a consignment consisting of 4 packages, out of which one item is electric typewriter. In the place of electric typewriter, 60 pcs. of Print Wheels were received and electric typewriter was missing. The non receipt of the electric typewriter from this consignment was brought to the notice of supplier, who, after due verification, informed that there was an interchange of consignment, which had occurred due to mistake. The suppliers, therefore assured to replace the wrong consignment and requested the appellants to re-ship the goods. The wrong consignment was re-shipped to the supplier on 31.1.1983 and in respect of the said consignment, on which duty has already been paid, they claimed refund under Section 27 of the Customs Act, which came to be rejected on the ground that the case does not fit within the scope of Section 27 of the Customs Act and the appellants should have claimed the benefit under Section 74 of the Customs Act. When the matter was taken up in appeal before the Collector (Appeals), the appeal was also rejected for the very same reason.
4. Heard Shri Mondal. He did not dispute the facts referred to above. His only plea was that since the goods were exported, they could have availed of the benefit under Section 74 of the Customs Act instead of claiming refund of duty.
5. After hearing Shri Mondal and perusing the available records, we find that in this case it is not disputed even by the department that in the place of one electric typewriter, 60 pcs of print wheels have been wrongly supplied by the supplier which have been re-exported. The goods were not taken delivery of. The goods were continued to be under the custody of the Customs. Since the duty was paid beforehand and this item was not cleared by them, they have claimed refund of duty under Section 27 of the Customs Act. The question to be considered is whether Section 27 would be applied to such a case and if it cannot be applied whether it goes to Section 74. Section 27 reads as below: -
"Any person claiming refund or any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector Customs."
6. From the above it is clear that any duty paid by the importer in pursuance of an order of assessment can be claimed as refund. In this case, it is admitted that the package in question was not cleared by them and was left with the Customs custody, from where shipment was made. There was no occasion for them to take the possession of the goods. In view of this, it has to be construed that the package has not been delivered to them at all. When it is admitted that the duty has been paid on the package, which has not been delivered to them, the question of claiming drawback under Section 74, does not arise merely because it was re-exported. It is a case of duty paid on goods but not delivered. In this view of the matter, we do not find anything wrong in the appellants claiming refund of duty under Section 27 of the Customs Act. We, therefore allow the appeal and remand the matter to the Asstt. Collector for considering the refund claim and granting the consequential relief.