1989 PLP 4332 (MLD)

SAEEDUZZAMAN SIDDIQUI, J.--The petitioner has challenged the orders dated 17-10-1978, 11-1-1979 & 29-6-1980 passed by the respondents Nos.1 to 3 rejecting the claim of the petitioner for refund of the excess customs duty as time-barred. The facts of the case in brief are as follows:- The petitioner imported printing machinery consisting of eight cases under invoice dated 7-11-1977 which arrived at Karachi per SS-Auzma on or about 26-11-1977. The petitioner submitted bill of entry dated 29-11-1977 for clearance of the above consignment for home consumption on which the Customs authorities assessed the import duty amounting to Rs.1,76,

686. This duty was duly paid by the petitioner but at the time of taking delivery of the consignment it was discovered by the petitioner that instead of eight cases only seven were received and accordingly the petitioner obtained a short landing certificate in respect of one case from Karachi Port Trust. It is alleged in the petition that on a second voyage of the same vessel SS-Auzma it was found that one case which was not earlier discharged was carried over and accordingly petitioner submitted a fresh bill of entry for clearance of the said one case on which the Customs authorities demanded additional import duty of Rs.1,40,

523. The petitioner protested against aforesaid demand as they asserted that this one case which arrived subsequently was earlier short landed in respect whereof Customs duty was already recovered by the Customs authorities and, therefore, the same could not be recovered second time. However, as the Customs authorities were not willing to release the consignment to the petitioner, the petitioner paid the aforesaid Customs duty under protest on 1-8-1978 and on 4-9-1978 they lodged a claim for refund of the said amount. The claim filed by the petitioner was rejected by respondent No.l by his order dated 17-10-1978 holding it time-barred. An appeal against the order was also dismissed and the order of respondent No.1 was confirmed by respondent No.2. Finally a Revision Application by petitioner to respondent No.3 also failed as the said respondent also concurred with the conclusions of respondents Nos.1 and

2. Mr. Nizam Ahmed learned counsel for petitioner contends before us that the claim submitted by the petitioner for refund of the amount was firstly neither time-barred nor it was beyond the scope of section 33 of the Customs Act and as such its rejection by the respondents as time-barred is wholly unwarranted. Alternately, it is contended by Mr. Nizam Ahmed that even if the claim of the petitioner was barred by limitation the delay in filing the claim could be condoned under section 224 of the Customs Act but the respondents failed to apply their minds in that regard while dismissing the claim of the petitioner as time-barred. Mr. Shamim Raza learned counsel for the respondents on the other hand contended that the claim filed by the petitioner was time barred as it related to refund of the amount which was originally recovered by the Customs authorities in respect of bill of entry submitted by the petitioner on 29-12-1977. It is not necessary here to examine the merits of the case as we are satisfied that rejection of the claim by the respondents without considering the provisions of section 224 of Customs Act is arbitrary in nature. We accordingly it, declare the orders passed by respondents Nos.1 to 3 as without lawful authority and of no legal effect. The result of the above declaration is that the claim application filed by the petitioner for refund of the amount will be deemed to be pending before respondent No. l which will be disposed of in accordance with the I law. There will be no order as to costs. A.A./P-113/K Case remanded.