ORDER
P.G. Chacko, Member (J)
1. The appellants had imported certain components for “Auto Cone Winders”. The vessel carrying the goods had arrived at Chennai port on 26.5.1998 and had to be anchored at an outer point due to Tug Masters’ strike. The vessel got entry inwards only after midnight of 1/2 June’98. Though the Bill of Entry had been filed earlier, the goods became chargeable to levy of duties of customs at the rates applicable on the date of entry inward, in terms of the proviso to Sub-section (1) of Section 15 of the Customs Act. On the date of entry inward of the vessel, there was a new levy viz. Special Additional Duty (SAD) at 8% under Section 3A of the Customs Tariff Act. The appellants cleared the goods on payment of SAD along with other duties of customs, but subsequently filed a claim for refund of SAD. This claim was rejected by the original authority on the ground that the duty was leviable on the goods on the date of entry inward of the vessel. The appeal filed by the party against the decision of that authority did not succeed. The present appeal is against the appellate Commissioner’s order.
2. There is no representation for the appellants despite notice, nor any request of theirs for adjournment. We are not inclined to keep this old appeal pending any longer. Accordingly, we take it up for disposal.
3. We have examined the records and have found that the subject assessment was not provisional. It is submitted by ld.SDR that the assessment was final and that the refund claim was filed without challenging it. He also reiterates the findings of the authorities.
4. After a perusal of the grounds of this appeal and study of the facts and circumstances of the case, we find that the assessee has suffered gross injustice. It is not in dispute that the vessel carrying their goods arrived at the port on 26.5.98, that it was constrained to be anchored for want of access to the wharf till the midnight of 1/2 June’98 and this happened on account of the Tug Masters’ strike. The lower authorities have clearly and fairly noted these facts in the respective orders. Obviously, however, they had no option but to go by the terms of the compulsive provisions of Section 3A of the Customs Tariff Act and Section 15(1) of the Customs Act. The vessel carrying the goods made its entry inward after the levy of SAD under Section 3A ibid came into force. The proviso to Section 15(1) of the Customs Act lays down that any Bill of Entry filed prior to the date of entry inward of the vessel would be deemed to have been filed on the said date. The main provisions of Section 15(1) lay down that duties of customs would be levied at such rate as are applicable on the date of filing of Bill of Entry. These provisions constrained the lower authorities to hold that the appellants were liable to pay SAD and hence not entitled to refund.
5. On our part, we think that the law does not compel any person to do the impossible. On the facts of this case, it was impossible for the appellants to take the vessel to a berth before the midnight of 1/2 June’98 on account of Tug Masters’ strike, which was beyond their control. Of course, it was not within the powers of the Customs authorities to avert the strike, either. Had there been no such incident in the port, the vessel could have made its entry inward prior to the crucial date (1.6.98) and would not have been liable to pay SAD on the goods. Thus, on the facts of this case, the appellants were constrained to pay SAD on the goods due to no fault of theirs but due to circumstances, for which they were not responsible. We are, therefore, of the view that the above maxim (the law does not compel a person to do the impossible) would clearly apply to this case. In the result, the appellants were not liable to pay SAD on the goods. In this view of the matter, we hold that the appellants are eligible for the refund, subject, of course, to evidence against the bar of unjust enrichment, which will be looked into by the original authority.
6. The impugned order is set aside and this appeal is allowed to the aforesaid extent. It shall be for the original authority to examine the question whether the refund claim is barred by unjust enrichment. That authority shall discharge this function in accordance with law and the principles of natural justice.
(Dictated and pronounced in open court)