COMMISSIONER OF CUSTOMS (SEA), CHENNAI versus M/S. BALLARPUR INDUSTRIES LTD.

Citation: [2001] SUPP. 3 S.C.R. 24 · Decided: 11-09-2001 · Supreme Court of India · Bench: B.N. KIRPAL, K.G. BALAKRISHNAN, P. VENKATARAMA REDDI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
COMMISSIONER OF CUSTOMS (SEA), CHENNAI 
v. 
MIS. BALLARPUR INDUSTRIES LTD. 
SEPTEMBER 11, 2001 
B 
[B.N. KIRPAL, K.G. BALAKRISHNAN AND P. VENKATARAMA 
REDDY, JJ.] 
Customs Ac:, 1962 : 
C 
Ss. 28 and 129D(2)-Power of Commissioner o,fCustoms to direct filing 
of appeal before Commissioner (Appeals)-lmport o.f certain goods-Assessee 
claiming them as accessories and as such covered under an exemption 
not(fication-Revenue treating the goods as spare parts and demanding duty-
Assessee paying the duty under protest and later filing application.for refund-
D 
Assistant Collector allowing refund with regard to one set o.f goods holding 
them as accessories-Claim o.f refund rejected with regard to other set o.f goods 
as the same were held to be spares-On appeal, Commissioner (Appeals) held 
the application for refund as time barred-On.further appeal, Tribunal held the 
application for refund to have been filed within the period of limitation-
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F 
Tribunal also observed that order passed by Collector of Customs uls. l 29D(2) 
was beyond the scope of his powers-Held, just as the Assistant Collector 
considered in detail the items which he regarded as ~pares, it was incumbent 
upon him to give details o.f other items before coming to the conclusion that they 
were accessories and not spares-Duty was paid by assessee on the basis o,fthe 
claim of Revenue that the items imported were spares and not accessories-
Re.fund could be ordered only !f there was a positive.finding based on tangible 
material to the effect that the items imported were accessories and not spares-
Commissioner was, there.fore, justified in passing an order u/s. 129D and 
directing the.filing of an appeal-Neither the Commissioner (Appeals) nor the 
Tribunal recorded any finding on merits as to whether the goods imported were 
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accessories or ~pare parts and whether the refund was properly allowed-It 
was, incumbent upon Commissioner (Appeals) to give a.finding with regard to 
the goods imported as to whether they were spares as claimed by Revenue or 
accessories as Claimed by assessee-Case remanded to Commissioner (Appeals) 
for deciding on merits whether refund was correct or any part thereo,f was 
H 
correctly allowed. 
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,.,.... 
COMMR. OF CUSTOMS (SEA), CHENNAI v. BALLARPUR INDUSTRIES LTD. 
25 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3942-3944 of 
A 
2001. 
From the Judgment and Order dated 9.5.2000 of the Customs Excise and 
Gold (Control) Appellate Tribunal, Chennai in A. No. CIR. No. 313 to 315/97 
in F.O. No. 618-620 of 2000. 
M.L. Verma, M. Gourishankarmurthy and B. Krishna Prasad for the 
Appellant. 
Ms. Indu Malhotra, Ms. Pooja Sriram, M. Venkataraman and Ms. Madhu 
Sweta for the Respondent. 
The following Order of the Court was delivered : 
In the instant case, some goods were imported by the respondent under 
three bills of entry. The claim of the respondent was that what was imported 
were essentially accessories and under an exemption notification no customs 
duty was payable in respect thereof. 
The record shows that a letter dated 12th September, 1992 was written 
by the appellant with regard to the said import. It was stated in this letter that 
some discussions had taken place between the representatives of the appellant 
and the respondent and as the goods imported were urgently required so ·. > to 
meet Export Shipment Deadline respondent was paying duty under protest at 
the rate proposed by the appellant herein. The request was made to release the 
consignment for assessment, payment of duty and early clearance. 
After the goods were cleared, an application for refund of the duty paid 
was filed. There is a dispute between the parties as to when was the application 
filed. According to the respondent, the application was filed on 5th March, 
1993, whereas according to the appellant the application was received in the 
Refund Section only on 7th April, 1993. The application bore more than one 
stamp and there was a dispute with regard to the date of receipt of the said 
application. 
The Assistant Collector allowed the refund of about Rs. 2.50 crores after 
examining the goods in question and holding that they were accessories. With 
regard to another set of goods, details of which are contained in the order of 
the Assistant Collector, it was held that the same were spare parts and no refund 
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in respect thereof was permissible. 
H 
26 
SUPREME COURT REPORTS 
[2001) SUPP. 3 S.C.R. 
A 
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