ORDER
I.J. Rao, Member (T)
1. The Department of Telecommunication (The District Manager, Railwaypura Telephone Exchange, Ahmedabad) imported certain spare parts by a Bill of Entry Cash No. 12D dated 30-9-1978/3-10-1978. After clearing the goods on payment of duty, the importers applied for refund of customs duty on the ground that the imported goods were replacements for 11 numbers battery cells, supplied free of cost by the foreign exporters. The Assistant Collector of Customs rejected the refund application on the ground that there was no provision in the Customs Act to refund duty recovered against surrender of damaged goods which are already cleared. He, therefore, held that there was no authority under which the refund claim could be admitted.
2. Aggrieved, the appellants filed an appeal before the Appellate Collector. The Appellate Collector upheld the Assistant Collector’s order observing that, “the appellants’ case was based entirely on equitable considerations and that, under the provisions of Law, there is no authority at all to grant refund of duty in cases such as the present one”.
3. The appellants, thereafter, filed a revision application before the Government of India (the revision application was filed by the clearing agents, M/s. Vaz Forwarding (P) Ltd., on behalf of the importers. The importers are present before us). This revision application, on statutory transfer to the Tribunal, is now an appeal before us.
4. We heard Shri R.K.P. Hinduja, Divisional Engineer accompanied by Shri M.V. Jha, Junior Engineer. Shri Hinduja explained the facts of the matter and reiterated the claims made in the revision application. He submitted that the appellants were entitled to the refund in terms of Notification No. 80/70-Cus. dated 29.8.1970. Shri J. Gopinath, the learned SDR, opposing the arguments, submitted that a perusal of Notification No. 80/70-Cus. would show that the present matter does not fail under the purview of the said notification.
5. We have considered the arguments of both the sides and have perused the documents placed before us. The facts are not disputed. The importers seek relief under Notification No. 80/70–Cus. This notification is reproduced below :-
“Notification No. 80/70-Cus. dated 29.8.1970
ARTICLES AND COMPONENT PARTS THEREOF:
When imported respectively for the replacement of defective articles or of component parts thereof are exempt from the whole of the duty of customs leviable thereon, to the following conditions, namely :-
(i) the defective articles were brought into India earlier from places outside India and are private personal properties of the importers;
(ii) the articles or component parts thereof, as the case may be are imported within the warranty period and are supplied free of charge by the foreign manufacturer in terms of the warranty given by the manufacturer in accordance with the established trade practice pertaining to the articles;
(iii) the repairs including replacement of the defective parts are done free of charge by the manufacturer through his agent or branch in India; and
(iv) the defective articles or component parts thereof if not re-exported, are destroyed or surrendered to the Customs.”
In the present case, the position is that the foreign suppliers replaced some defective cells after damages were noticed therein at the time of installation, which was sometime after the importation. The very first condition of the notification in question is that the imported goods should have been private properties of the importers. In the present case, the goods originally imported cannot be held to be private personal properties. The third condition of the notification is that the replacement should have been done free of charge by the manufacturer through his agent or branch in India. In this case, admittedly, the replacement was done by the foreign supplier directly. In view of this position, we hold that the appellants are not entitled to the refund under Notification 80/70-Cus. We, therefore, dismiss the appeal.