Customs, Excise and Gold Tribunal - Mumbai
Embarkation Headquarters vs Collector Of Customs on 27 November, 1984
Equivalent citations: 1985ECR249(TRI.-MUMBAI), 1985(20)ELT53(TRI-MUMBAI)
ORDER Gopal Hegde, Member (J)
1. The revision application filed before the Government of India against the order bearing No. S/49-670/80 Air dated 18-9-80 passed by the Appellate Collector of Customs, Bombay statutorily stood transferred to the Tribunal for being heard as an appeal.
2. The undisputed facts are :
The Embarkation Headquarters imported a consignment of Machine and cleared the same under B/E Cash No. 2181 dated 17-9-1979 by paying customs duty of Rs. 4,76,270.59. The suppliers failed to supply the required number of Filter Paper along with the machine. They, however, supplied the short shipped filter paper by a separate consignment and the appellants cleared the said consignment under B/E 943D dated 14-9-79 after paying customs duty of Rs. 34,503/-. Thereafter the appellants made an application in Form-A for refund of Customs duty paid against B/E 943D dated 14-9-79. This application was rejected by the Assistant Collector, holding that the goods cleared under B/E 943D have been correctly assessed for duty. No refund is due on this Bill of Entry. He further observed that if any excess payment was made on another B/E, the refund claim should have been filed against that Bill of Entry.
3. On appeal, the Appellate Collector upheld the order passed by the Assistant Collector. The Appellate Collector also considered the submissions made by the appellants regarding short shipment. The Appellate Collector observed :
"According to the appellants they were not supplied filter paper along with the main machine (B/E Cash No. 2181 dated 11th September, 1979) although the same was invoiced (Invoice No. 1987/79) and shortage was subsequently supplied (madeup) against a free charge Invoice No. 2560/79 as for B/E Cash No. 934D of 14th September, 79. It is, observed, however, that the original invoice 1987/79 covered 10 rolls of filter paper valued at DM 490J/- (Item No. 15 of invoice) whereas the replacement covers only 7 pieces of filter rolls for DM 3490/-. The two entries do not tally with each other.
Moreover, it is observed that the shortage discovered is not covered by a shortage certificate of Customs. Presumably the shortage was discovered after clearance.
In view of the above reasons, the appeal is rejected."
4. As stated earlier, feeling aggrieved by the order of the Appellate Collector the appellants filed a revision application which is now considered as an appeal.
5. During the hearing of this appeal, Shri. D.H. Shah, the learned Advocate for the appellants contended that admittedly there was excess payment of duty and the claim for refund has been rejected illegally. Shri Shah further contended that there is no warrant in law that claim for refund should be made in respect of a particular Bill of Entry. The required particulars had been given in the application for refund. In the circumstances, the authorities below were unjustified in rejecting the refund claim.
6. Shri Gidwani, learned Departmental Representative contended that the refund claim should relate to an assessment order which was passed by an officer of Customs lower in rank than the Assistant Collector of Customs. The claim as put forward by the appellants were in respect of an assessment order covered by B/E 943D dated 14-9-1979. Shri Gidwani contended that there was no short shipment in respect of the said B/E and therefore, the Assistant Collector was wholly justified in rejecting the claim. Shri Gidwani further submitted that other particulars mentioned in the refund application was only in support of the claim made in the body of the application. It does not have the effect of making refund claim in respect of B/E 2181 dated 17-9-79. When questioned by the Bench as to why the Appellate Collector went into the merits of the case, Shri Gidwani submitted that the Appellate Collector need not have gone into the merits and that part of the order may be ignored. He further submitted that the Appellate Collector had upheld the order of rejection passed by the Assistant Collector. He, therefore, submitted that no grievance can be made against the order passed by the Assistant Collector or the Appellate Collector.
As regards short shipment, after going through the records particularly letters written by the suppliers and subsequent Bill of Entry and the party which imported the goods, Shri Gidwani submitted that short shipment may be accepted.
7. I have carefully considered the submissions made on both sides and perused the records of the case. As their claim related to B/E 943, dated 14-9-79, strictly speaking, no exception can be taken as to the order passed by the Assistant Collector. But then the Assistant Collector, in my opinion, was too legalistic and had ignored the justness of the claim made by the appellants. As a matter of fact, in his order the Assistant Collector has observed:
"If any excess payment is made on another Bill of Entry, the refund claim should be filed against that BE."
In the application for refund against column 6 Grounds of Jaim, the appellants have stated as under :
"The item under claim (Filter paper rolls) is supplied free of charge vide suppliers Invoice No. 2560/79 because the value of the item im ported has already been included in the Invoice No. 1987/79 (th-e appraised invoice is not received from Customs) and the Customs duty is recovered for the items vide B/E Cash No. 2181 dated 17-9-79. (The same is forwarded to your office on 8-1-80 in response to your letter No. 1551/S/121/CD/HAL/NK dated 20-12-79). While supplying the machine filter paper was not supplied alongwith the machine through oversight. The full value of item was also debited to the Import Licence on 22-8-79.
The refund of the entire amount of Rs. 32,503.00 recovered as final duty may therefore be granted."
8. Thus in this application itself the appellants have given reason as to how they became entitled for refund. It is true that instead of making their claim in respect of B/E 2181 dated 17-9-79, they made their claim against B/E 943 dated 14-9-79. Apparently, because, B/E 943 dated 14-9-79 was earlier to B/E 2181 dated 17-9-79. In any case, the Assistant Collector had all the required particulars and evidence before him to consider their refund claim. From the statement made in the refund application it appears that the office of the Assistant Collector had required the appellants' to produce B/E 2181 dated 17-9-79. Neither the Customs Act nor any law precluded the Assistant Collector from considering the refund claim on its merit. Instead of directing the appellant to file a separate refund claim against another B/E, the Assistant Collector could have considered their claim against that Bill of Entry, the particulars of which were furnished by the appellants in their application. In the matter of grant of refund, the authorities are required to consider the justness of the claim and they should not be swayed by technicalities.
9. It must be remembered that the claim application was filed by the party and not by an advocate. Legal niceties would not have been known to the party. But all the same a firm foundation had been laid in the application for refund. I wish the Assistant Collector had taken a helpful attitude.
10. Now coming to the order of the Appellate Collector, he did not reject the appellant's claim on the ground that the claim for refund was made against an incorrect B/E. He had considered the merit of the claim. He rejected the claim because of the discrepancy as to the number of rolls of filter paper in the two consignments; for non-production of shortage certificate and also on the ground that the shortage was discovered after clearance. Shri Gidwani's contention that consideration of the appeal on merit by the Appellate Collector should be ignored, cannot be accepted. Apparently, the Appellate Collector did not desire to take a technical view of the matter as has been done by the Assistant Collector. The Appellants had produced the required particulars to substantiate their claim for refund by production of two bills of entry.
11. Coming to the reasons given by the Appellate Collector, was not due to pilferage or theft or destruction, but it was due to short-shipment. Short-shipment had been established by other unimpeachable evidence, namely, by production of letter of the suppliers, by production of B/E which was earlier to the clearance of the main consignment itself. In the said circumstances, absence of shortage certificate either of the Customs or of the B.P.T. will be of no consequences. As has been rightly conceded by Shri Gidwani, shortage has to be accepted having regard to the facts established in this case. Rejection of the refund claim in the circumstances of this case, in my view, was wholly unjustified. I, therefore, allow this appeal and set aside the orders passed by the authorities below. The appellants shall be granted consequential relief.
12. Before parting with this case, I feel it necessary to observe that while considering the refund claim, the Assistant Collector is performing a quasi-judicial function. It is true that the officers of the rank of Assistant Collector and above are saddled with the dual function. They act administratively and also as quasi-judicial authorities. In whatever capacity an officer of Custom may perform his function, he cannot consider himself to be a mere agent for collection of revenue. Such an attitude, probably would nave been welcomed or expected when the country was under an alien Rule whose main concern was to collect as much revenue as possible whether just or unjust, legal or illegal. After independence and particularly after the coming into force of the Constitution, there is a sea of change both in the attitude and functioning of the State. State at present is welfare State. Rule of law is supreme. Fairness in action is expected from all. Though the State need enormous finance to carry out its welfare activities it is no more interested in retaining the amount to which it is not legally entitled and which legitimately belonged or due to its subjects. This aspect shall have to be borne in mind by every Revenue Officer, particularly, an officer who is entrusted with quasi-judicial power.