Customs, Excise and Gold Tribunal - Delhi
Food Corporation Of India vs Collector Of Customs on 6 February, 1985
Equivalent citations: 1985(22)ELT568(TRI-DEL)
ORDER 1. The subject two consignments of fertilizer (Urea) were imported by the Ministry of Agriculture and Irrigation, Department of Agriculture, Government of India. The Food Corporation of India (appellants) handled the imports and got the goods cleared from the Customs House after paying the customs duty. There was a short collection of duty on account of non-addition of pre-inspection charges and demands were made by the Asstt. Collector and after issuing the show cause notice the same were confirmed. The appellants paid the duty and then challenged the demands before the Appellate Collector. The Appellate Collector remanded the matters to the Asstt. Collector for showing detaiis of calculation of the demands but he rejected the main pleas of the appellants for (1) calculation of pre-inspection charges at the lower rate of 0.35% and (2) limiting the demand to the quantity of goods actually landed. The revision applications we re then filed before the Ceneral Government which on transfer are being treated by us as the subject appeals. 2. Shri Mahesh Kumar, SDR has raised a preliminary objection that the FCI has no locus standi to file the appeal as the import had been made by the Government of India, and that the corporation is not the Government. 3. Shri Mehta, the learned consultant for the appellants has filed certain copies of the documents of the Government of India in order to show that FCI had been authorised to file, pursue and settle all the refund claims of customs duty. In this connection a copy of the letter No. 3-5/74-FA (G) dated 2-5-1975 issued by the Government of India, Ministry of Agriculture and Irrigation, Department of Agriculture, New Delhi has been filed. It has been clearly stated by the Government that the FCI who is handling the fertilizers at ports would accept the customs duty assessment in accordance with the rules and orders and the clarifications given in the said letter safe guarding the interests of the Government of India and would be responsible for filing, pursuing and settling all legitimate refund claims. Another letter No. 3-6/76-FA (G) dated, 10th January 1977 issued by the same department has also been filed where the Government in categorical terms stated that there were standing orders that the refund claims be filed by the FCI and there was no need to ask for permission in individual cases. Apart from these letters, Shri Mehta also relied on the decision of this Tribunal reported in 1983 ELT 1835 (Oil Dale Trading Pvt. Ltd., Calcutta v. Collector of Customs, Calcutta), and also Anr. decision of this Tribunal reported in 1984 (18) E.L.T. 465 (Indian Organic Chemicals Ltd., Madras v. Collector of Customs, Madras). He further submitted that when an order had been passed by the Asstt. Collector and the FCI was aggrieved by the order, the aggrieved party, namely, FCI had a right to challenge that order in appeal. On the other hand, Shri Mahesh Kumar, the learned SDR submitted that there was no specific order of Government of India authorising FCI to file refund claims or defend other matters where refund was involved. He further stated that there was no direction or permission for the FCI to file appeal or revision against the orders passed in their application for refund. 4. On careful consideration, we observe that the appellants have filed the appeals as general powers have been given in the letters quoted by Shri Mehta to FCI to file, pursue or settle the matters like the one which are in dispute before us. That is sufficient authority in the present case. The preliminary objection is overruled. 5. As in appeals Nos. 1184/81-A and 1185/84-A common questions of fact and law are involved, they will be disposed of by this common order. 6. The appellants seek partial refund of customs duty paid on account of addition of pre-inspection charges to the assessable value of fertilisers imported by the Government of India through them. The appellants state that as per the letter dated 19-4-1979 of the Ministry of Agriculture and Irrigation, the rate of pre-inspection charges for fertilisers procured through MMTC was fixed at 0.35%. They received this letter late and by that time the Assistant Collector had confirmed the less charges demands by adding pre-inspection charges at the higher rate of 0.5%. The Appellate Collector subsequently rejected their claim for downward revision of the pre inspection charges from 0.5% to 0.35% on the ground that the assessable value in the bill of entry could not be amended, subsequently under Section 149 of the Customs Act, 1962. The appellants also seek partial refund on the ground that certain quantities of the fertilisers were short landed and hence there should be no question of less Charge demand in respect of those quantities. ' 7. We have carefully considered the arguments of both the sides. In the past, a number of appeals of the same appellants on account of down ward revision of the rate of pre-inspection charges have been allowed. This is so because the revised rate of 0.35% for fertiliser procured through MMTC was worked out by the Government themselves on the basis of the cost data. The appellants have shown us the documentary evidence pointing out that the fertilisers in the present two cases were procured through MMTC contract. Accordingly, we direct that the pre-inspection charges should be added in the present two cases at the rate of 0.35% and not 0.5%. The orders of the lower authorities are modified to that extent. D.N. Lal, Member (T)
1. The learned consultant for the appellants submitted that the issue involved in the present appeal related to the inclusion of inspection charges @ 0.60% on F.O.B. Value to arrive at the assessable value of the consignment of Urea imported under Bill of Entry No. 076 dated 14-11-1977 whereas the said charges should have been adopted @ 0.35%. Shri Mehta submitted that in several appeals decided by this Tribunal this issue had been decided in the appellants' favour. In particular, as referred to Order Nos. 542 to 553/1984, dated 26-7-1984 in Appeal Nos. 1390-1410/80-A. In the instant case also, at the time of filling the refund claim, the appellants were only aware of the fact that the exact quantum of inspection charges was the subject of a contract between the Ministry of Agriculture and the foreign supplier but the exact figure was not known to them. Accordingly, they had merely made the following observation in the refund claim "inspection charges collected are not agreed as per contract." Shri Mehta submitted that in the light of the previous orders of this Tribunal and also of the Appellate Collector of Customs, Madras pertaining to identical issue, the present appeal deserved to be allowed.
2. Shri A.K. Jain, the learned SDR submitted that an appeal involving identical issue of the same appellants had been decided against them vide 1983 ELT 361 (CEGAT) (Food Corporation of India v. Collector of Customs, Madras). He further submitted that this judgment of the Tribunal had not been brought to the notice of the Bench when the appeal No. 1399-1410/80-A were argued. He submitted that had this been done, the Bench could have perhaps taken a different view. His first prayer was that since two contrary judgments had been pronounced by the Tribunal from the same Bench, a Larger Bench should be constituted to decide the issue. Thereafter, Shri Jain pointed out certain discrepancies in the bill of entry pertaining to the present appeal to show that the importation in question was not covered by one of the contracts figuring in the letter dated 21-12-1979 from MMTC. Shri Jain's alternative prayer, therefore, was that irrespective of the earlier orders referred to by the learned consultant, the present appeal deserves to be rejected on its own facts.
3. Replying to submissions made by Shri Jain, Shri Mehta submitted that the present appeal had been filed by a Government department and,therefore, the benefit of relief, if granted, will not go to a private person. Moreover, the learned SDR had advanced grounds of technical nature for rejection of the appeal. Shri Mehta also referred to the Tribunal's judgment reported in 1984 ELT 419 (CEGAT) in the case of M/s. Premier Tyres Ltd. versus Collector of Customs, Madras. It was submitted that in that case the Tribunal had taken the view that shifting of grounds on a point of law did not attract the mischief of the time bar Under Section 27 of the Customs Act, 1962. In the present case, at the time of filing of the refund claim, due to circumstances beyond the control of the appellants, they were not in possession of all the documents relating to inspection charges. Accordingly, they had set out in the grounds of claim for refund that they were contesting the rate adopted by the lower authorities and had also referred to the existence of a contract. According to Shri Mehta, this amounted to a protest claim where it is permissible to file supplementary evidence in support at a later date. Shri Mehta further stated that there had been other decisions of the Tribunal where a view had been taken that it is sufficient for avoiding limitation to lodge a refund claim with a prayer for filing the complementary grounds at a later stage.
4. We have heard both sides. We do not think that the appellants had wilfully kept back from us the judgment reported in 1983 E.L.T. 361 (CEGAT) because it was adverse to them. We have examined the ratio of the judgment 1983 E.L.T. 361 (CEGAT) vis-a-vis Order Nos. 542 to 553/1984 of this Bench, it appears that in the former case the Food Corporation had not abinitio shown any amount towards inspection charges in the bill of entry. When this was detected by the Visakhapatnam Customs, a demand for differential duty was issued by them with reference to the said charges being of the order of 0.50% of the C. & F. value of the goods. What happened further is not quite clear from the order. From the references to Section 27, Customs Act, which deals with claims for refund it would appear that the amount demanded was said, and its refund sought. But since this was a case where duty was demanded, and this could ably have been done in terms of Section 18 under the orders of an Assistant Collector (or higher officer), and the further remedy was only by way of appeal, it is by no means clear how the question of a refund claim in terms of Section 28 could arise. What is clear is that there was at least one material difference between the facts in that case and the cases covered by our orders in Appeal Nos. 1399-1410/80, in that the former case originated with a demand by the Department (presumably Under Section 28), and the latter from refund claims by the assessee (Under Section 27). In these circumstances we are not able to grace with the learned SDR that the reading of the two decisions reveals a conflict which needs to be resolved by reference to a larger bench. Our orders in Appeal Nos. 1399-1410/80 set out the facts of those cases very clearly, and we find that the facts of the case now before us are similar in all material respects to the facts in those cases. We accordingly consider that the ratio of our order Nos. 542-553/1984 is more aptly applicable to the facts of this case than the case decided in 1983 E.L.T. 361 (CEGAT). We have also taken note of the fact that the appellants are a department of the Government of India and are not to expected to wilfully keep back any fact from us because any relief from our decision will not go to private party. In the end we set aside the order dated 2-7-1980 passed by the Appellate Collector of Customs, Madras and direct that the inspection charges applicable to the present came be adopted 0.30% against 0.60% consequential relief flowing from this order be allowed to the appellants.
8. While recalculating the amount of the less charge actually payable, the quantity of fertilisers proved to be short landed should be excluded and the demand should relate only to the quantity landed.
9. In the result, we allow both the appeals in the above terms with consequential reliefs flowing there from.