- (1.) This is an appeal from an order of Banerjee, J. dated 25th June 1964 made in a writ application quashing an order of refund of Customs Duties and directing the Additional Collector of Customs to rehear the appeal and pass appropriate orders in respect thereof.
(2.) The respondent carries on business as exporters and dealers in inter alia tea at No. 17 Mangoe Lane, Calcutta under the name and style of M. A.M. Kashani & Son., with a view to effect shipment for export from Calcutta to Khorramshahr in Iran of 2887 cases of loose tea by the ship s.s. Arsterturm belonging to Hansa Line.
(3.) The respondent submitted six several shipping bills between 24th March 1962 and 30th March 1962 as required under section 137 of the Sea Customs Act, 1878 for assessment of export duty and cess thereon. After the submission and passing of the said. shipping bills the respondent ascertained that s.s. Arsterturm would not be in a position to carry the said consignments of tea. The respondent made arrangement for despatch of the said goods by another vessel s.s. Lokesefjell belonging to Tidemond Line and thereafter applied to the Customs Authorities for amendment of the said shipping bills by deleting the name of the ship s.s. Arsterturm and incorporating the name of s.s. Lokesefjell. By several orders made by the Assistant Collector of Customs for Exports dated 19th April 1962 the said shipping bills were amended as asked for. It appears that in respect of the shipping bills submitted between 24th March 1962 and 30th March 1962 the respondent's account maintained by the Customs Authorities under section 41 of the Sea Customs Act was debited with the sum of Rs. 67,445.40 nP. being the total amount of export duty and cess payable on the basis of the rate of export duty on loose tea at .44 nP. per kilogramme which was the rate prevailing at the time. On 24th April 1962 a notification was issued by the Government of India reducing the rate of export duty on loose tea to .10nP. per kilogramme from .44nP. per kilogramme this new rate came into force with immediate effect. On 26th April 1962 the respondent filed a fresh set of six shipping bills for the despatch of the said. 2887 cases of loose tea for the purpose of assessment and payment of export duty at the reduced rate and it appears that a sum of Rs. 20,066.40 nP. was debited against the respondent in the said current account maintained by the respondent with the Customs Authorities under section 41 of the Act. This duty was calculated on the basis of the reduced rate of .10 nP. per kilogramme which was the rate prevailing at that time. The vessel s.s. Lokesefjell arrived in the Port of Calcutta on 2nd May 1962 and the order for entry of such vessel outwards was given by the Collector of Customs, Calcutta under section 61 of the Act on 18th May 1962. The said 2887 cases of tea were loaded on the vessel between 2nd May 1962 and 8th May 1962. On 22nd May 1962 the respondent filed short shipment notices with the customs Authorities in respect of the first set of shipping bills dated 24th March 1962 and 30th March 1962 respectively and applied for refund of the money paid on account of Customs Duties and or charges in respect of the said shipping bills. On 15th June 1962 the Assistant Collector of Customs for Exports rejected the claim for refund and cancelled the short shipment notice. The relevant part of the order may be set out hereunder : "Subject: Shipping Bill No. DE(D) 625 of 24-3-62 s.s. Lokesefjell Rot 62/571. The shippers have filed a short shipment notice against the goods covered by the above-noted shipping bill claiming refund of cess paid on them. But on verification of the relative Export General Manifest it is found that the goods in question were shipped in full by the same shippers under shipping bill No. DE(D) 276 of 26-4-62 by the same vessel for the same Port with the same marks and numbers and as such the short shipment notice filed by them cannot be accepted as valid. Order In the circumstances the short shipment notice is cancelled and their claim for refund rejected as unsubstantiated under section 140, Sea Customs Act. Sd/- S. Bhujangaswami Assistant Collector of Customs (Preventive)";