ORDER
V.K. Jain, Member (T)
Page 0264
1. Heard Shri J.P. Khaitan, Sr. Advocate for the Appellant. This is a case of refund. The Appellants filed a Bill of Entry. They paid duty on January 4, 1990. The consignment reached on January 15, 1990 when the appellant was required to file a fresh Bill of Entry and pay the duty for the second time. In this case the appellant is seeking refund of the duty paid under the first bill of entry. The advocate draws my attention to the order of the Commissioner (Appeal) No. 132/95 dated-23/9/95 where the Commissioner (Appeal) has accepted the appeal of the appellant. The findings of the Commissioner (Appeal) in that order as follows :
I have carefully considered the appellants submissions and also gone through the case law cited. The point involved for decision in the appeal is whether a claim for refund of not landed goods filed before the Group A.C. through whose group duty had been assessed and collected can be treated as time barred by the other Assistant Collector who has been entrusted with sanction of such refund claims. In the instant case the appellant paid duty vide bill of entry No. AI-115 dt. 4.1.90. Subsequently, it Page 0265 was noticed that though the air-way bill was received, the consignment had not arrived in the scheduled flight. When the consignment subsequently arrived by another flight duty was again paid vide a fresh bill of entry No. BESL 1576 dt. 28.4.90. For the duty paid on 4.1.90 vide bill of entry No. AI-115 a refund claim was filed with the Assistant Collector of Customs (ACC) vide their letter dt. April 28, 1990. The said Assistant Collector sat over the letter till 18.12.90 and on 19.12.90, that is, after nearly 8 months returned the relevant documents advising the appellant to file those before the Assistant Collector of Customs for Appraising Refund Section in the Custom House. On receipt of the claim in the Appraising Refund Section there were correspondences between the Assistant Collector of Customs, ARS and the appellant regarding the claim. The appellant also gave several reminders. Ultimately vide order No. 306/94 dt. 25.7.94 the claim was rejected by the Assistant Collector ARS as time barred because he took the date of receipt of application for refund as 4.2.91 instead of 28.4.90. In this case I find that the claim of refund was not filed in proper form before the concerned Assistant Collector. Excepting this procedural lapse, which is not a serious one, the appellant has no other fault. He has been wronged by the Department. Since the refund claim was made on 28.4.90 for duty paid on 4.1.90 the claim has to be treated within time. In this regard I totally agree with the decision of the Appellate Collector of Customs, Bombay cited by the appellant. What the Assistant Collector of Customs for Air Cargo Complex ought to have done is to forward the claim papers of the appellant to the Assistant Collector of Customs for Appraising Refund Section under intimation to the appellant. Hence, without going into the other points canvassed and the case laws cited I accept the appeal on this single point.
The then Commissioner (Appeal) has set aside the order in original and directed the Assistant Commissioner to consider the refund claim on merit within 45 days of the receipt of his order. The Assistant Commissioner passes the order after Eight years and rejects the refund claim of the party. Commissioner (Appeal) in the impugned order also rejects the appeal of the party and upholds the order of the lower authority. The Advocate submits that when the then Commissioner (Appeal) in 1995 has accepted the appeal of the appellant, the option opened to the Department was either to go in appeal against that order or follow the order passed by the Commissioner (Appeal). The advocate submits that they have paid the duty on 4th January, 1990 and claimed the refund of the duty in April, 1990. There is no dispute as regards the non arrival of the consignments as Commissioner (Appeals) findings in this regard is very specific. The Lower Authority also does not dispute that the consignment has not arrived at that time. In view of this he submits that their refund claim may be allowed. The Ld. Advocate relied upon a decision of the Tribunal in the case of Godrej & Boyce Mfg. Co. Ltd. v. Collector of Customs, Mumbai wherein Tribunal has held that unjust enrichment-duty paid in Page 0266 respect of goods that never arrived in India -no question arises that duty has been passed on any other person – Section 27(2) of the Customs Act, 1962.
2. Heard Shri Y.S. Loni, Ld. JDR. He reiterates the findings of the Commissioner (Appeal).
3. I have heard both the sides. I find that the then Commissioner (Appeal) has clearly held that the duty paid under Bill of Entry dt. 4/1/90, the consignment has not reached the appellant, has paid the duty second time when the consignment has come and he has allowed the appeal of the party on the single point. I find difficult to agree that the grounds taken by the Adjudicating Authorities in the remand order and the Commissioner (Appeal) in his subsequent order that the refund claim of the party is not maintainable. If the Department has disagreed that the findings of the then Commissioner (Appeal) in 1995, they had a right to appeal but after Ten years they cannot dispute the findings of the then Commissioner (Appeal). In view of the findings of the then Commissioner (Appeal) quoted above, I find the party is entitled for refund. I find that the provisions of unjust enrichment was not applicable in this appeal when the refund was claimed by the appellant in 1990. The ratio of the decision of the Tribunal quoted above is applicable in this case.
In view of this I allow the appeal of the party and set aside the order passed by the Commissioner (Appeal).
Pronounced in the open court.