Customs, Excise and Gold Tribunal - Mumbai
J.K. Synthetics Ltd. vs Collector Of Customs on 29 October, 1987
Equivalent citations: 1988(34)ELT693(TRI-MUMBAI)
ORDER K. Gopal Hegde, Member (J)
1. This appeal arises out of and is directed against Order No. S/49-295/83R dated 18.3.83 passed by the Appellant Collector of Customs (Appeals), Bombay.
2. When this appeal was taken up for consideration none represented the appellants. I have considered the appeal memo and heard Shri Prabhu. The undisputed facts are : that the Customs Authorities collected Rs.92,395.51 in excess of the duty payable by the appellants in respect of certain imports affected by them. It appears that during the audit, the audit party pointed out to the customs authority regarding the excess collection. By reason of the audit objection the Assistant Collector by his letter No. nil dated 27.11.82 informed that appellant to claim refund of Rs.92,395.51 which was the excess duty collected. Accordingly the appellants made an application claiming refund of the said amount. Strangely that application was rejected by the Asst. Collector holding that refund claim was barred by time as the same having not been made within a period of six months from the date of payment. Feeling aggrieved by the order the appellants preferred an appeal before the Collector (Appeals) was unsuccessfully. The Collector (Appeals) took a view that Section 27 of the Customs Act was applicable to the claim and therefore rejection was correctly made. As stated earlier, feeling aggrieved by the order of the Collector (Appeals) the present appeal had been filed. In the memorandum of appeal the appellants have contended that they had paid the duty under protest and the authorities below have not considered that aspects of the case. They had urged that the duty was paid under protest, six months limitation contemplated by Section 27 is not attracted.
3. Shri S.P. Prabhu, appearing for the Collector, explained the procedure followed in the department. He submitted that the refund arose because of the wrong mentioning of the currency. He submitted that upto a particular point of time whenever the audit party points out excess collection there used to be suo motu refund to the party but later on this procedure had been discontinued and the party was required to make an application claiming refund and if that application is beyond time, the same is being rejected. In this connection Shri Prabhu urged that the provisions of Section 27 would apply to such cases also.
4. The new procedure adopted by the customs is repugnant to sense of justice and fair play. Unfortunately the Tribunal has not been vested with the power of quash such orders. If the party was to approach the Civil Court or High Court, he would get a refund because the department cannot resist such a just claim on any ground. It has been often emphasised by the Supreme Court that a welfare state should not deny the just claim of its citizen on grounds of technicalities. Even the valid plea of limitation on the part of the State is depricated. It is the department which informed the applicant that they had collected excess amount and that the appellant should make an application for refund. When the applicant made such an application the same was rejected on the ground of limitation. This attitude of the department shocks one's conscience. There is nothing in the Customs Act which prohibits the Deptt. from making suo motu refund of the duty erroneously or illegally collected. For such an action the limitation prescribed in Section 27 is not applicable. It is like refunding over time charges collected by the Department for not doing over time work.
5. Section 27 is intended to cover cases where the department is required to hold an enquiry as to the validity or admissibiiity of the refund claim. That section is not intended to cover the refund which is sought as directed by the department -or else asking the party to seek refund becomes an empty formality and waste of public fund and time.
6. The appellants had also contended that duty had been paid under protest, if that be so, then, the authorities below were not correct in holding that the claim is barred by time. This aspect of the matter also had not been considered by the authorities below. I, therefore, allow this appeal set aside the orders passed by the authorities below and remand the matter to the Asstt. Collector (Refund) for consideration afresh in the light of the observations contained in this order.