Hanuman Vitamin Foods Pvt. Ltd. vs Collector Of Customs, Bombay

1. This appeal, filed originally as special leave petition but converted as appeal, is directed against the order of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, by which the Tribunal maintained the order of the Appellate Collector dismissing the appeal filed by the appellant as being without jurisdiction. The circumstances in which the appeal was dismissed are slightly peculiar. The appellant, a holder of industrial licence for manufacture of Protein Extender exported Soyabean Protein Concentrate which was treated as animal feed by the Department and the appellant was required to pay customs duty on it. The appellant paid it under protest. It later on filed an application before the Assistant Collector of Customs for refund of customs duty as well as customs cess which according to it was erroneously collected by the authorities. Its claim was rejected sometime in 1978. Later on, the Assistant Collector passed another order on 17-6-1979 and rejected the claim of the appellant as despite grant of sufficient time the appellant did not produce any evidence in support of the claim that the exported goods were not animal feed. Against this order, the appellant filed an appeal before the Appellate Collector of Customs, Bombay. On 1-7-1980, it received a communication from the Assistant Collector of Customs enquiring the date on which the orders were received by the appellant. It was replied on 10-7-1980 and it was mentioned that no order was received by it but its Export Manager obtained the order from the Department. The appeal was however rejected on 26-9-1980 and it was observed:

'The order dated 17-6-1979 against which the appeal appears to have been filed covers the same matter as those covered by the 5 orders which had been received by the clearing agents in 1978. The said order dated 17-6-1979 appears to be redundant and invalid."

This order was challenged in further appeal before the Tribunal. The appeal was dismissed.

2. What is apparent from what has been stated is that the appeal was not decided on merits as according to the Appellate Collector and the Tribunal, the Assistant Collector having rejected the claim of refund earlier, the order passed in 1979 was without jurisdiction. To that extent, the order appears to be correct. At the same time, the earlier order having not been communicated to the appellant, the appellant was prevented from getting an adjudication on merits from the higher authority. The Assistant Collector having passed another order subsequently, the appellant was well within its right to assume that its claim for refund had been rejected in 1979 only. The result is that the appellant was prevented from challenging the first order before the higher authorities because the Assistant Collector passed another order in 1979 and the correctness of the second order was not decided by the higher authorities as an earlier order had been passed dismissing the claim of the appellant. No one should suffer for the mistake committed by the Court. The appellant, in our opinion, was prevented from seeking its remedy before higher authority due to mistake committed at the instance of the Assistant Collector.

3. For these reasons the appeal succeeds and is allowed. The orders passed by all the authorities including the Assistant Collector are set aside. The Assistant Collector is directed to serve a copy of the order passed in 1978 rejecting the claim of the appellant within eight weeks from the date a copy of this order is received. The appellant shall be entitled to challenge it by way of appeal. The Additional (sic Appellate) Collector of Customs shall not dismiss the appeal on ground of delay. He shall decide the same on merits in accordance with law. Parties shall bear their own costs.