D.N.Sinha, J. - (1.) The facts in this case are shortly as follows : The petitioners in this case carried on business in co-partnership under the name and style of "Keshrichand Nihalchand". The firm inter alia arried on business in importing betelnuts from the eastern countries. On 19-3-1957 an import licence was granted to the petitioners' firm for importing betelnuts worth Rs. 24,863/- from a soft currency area. The period of the said licence was January-June, 1957. On the strength of the licence, the said firm entered into an agreement with T. N. Sharma Ltd., of Penang, for supply of 80 bags of betelnuts. Pursuant to the said agreement, the said T. N. Sharma Ltd., sent 80 bags of betelnuts weighing 134.40, piculs, of the total value of Rs. 10,322.52 np. and the same were shipped by the steamer S.S. Noreverett. On or about 9-5-1957 the petitioners' firm received a copy of the invoice from the snipper and on 11-5-1957 they received a certificate of origin. The said steamer was expected to arrive in Calcutta Port on or about 23-5-1957. In order to avoid delay or demurrage charges, the petitioners' firm through their clearing agents caused to be prepared the Bill of Entry in respect of the said goods. They also obtained the shipping documents from the Bank against the payment of the full value thereof. On 4-6-1957 the said firm through their clearing agents paid customs duties on the said 80 bags of betelnuts In full, amounting to Rs. 18,296.25 no. On 5-6-1957, it is stated that when the petitioners' firm went to clear the said 80 bags of betelnuts, the Commissioners for the Port of Calcutta delivered only 26 bags, and the balance of 54 bags were shown as "not found in the shed". Between the 6th and 11th June, 1957 a search was made for the remaining goods, but they could not be found. On 80-7-1957 the Commissioners for the Port of Calcutta issued to the petitioners* firm a short-landing certificate in form "B" a copy whereof has been annexed to the petition and marked with the letter "B". This short-landing certificate shows that out of 80 bags the quantity landed was 26 bags, that is to say, 54 bags were not landed at all. Thereafter, the petitioners' firm made a claim for refund of duty which was over-paid. On or about 7-1-1958 the petitioners' firm received a refund-order dated 6-1-1958 from the Assistant Collector of Customs, Manifest Clearance Department for the sum of Rs. 12,855/-. On or about 13-1-1958 the petitioners' firm received payment of Rs. 12.855/-. On 15-9-1958 the petitioners' firm received a notice from the Additional Collector of Customs, a copy whereof is annexure "C" to the petition. In that notice it was stated that the petitioners' firm had obtained a refund of Rs. 12,855/- in respect of the short-landing of 54 bags out of 80 bags alleged to be short-landed from S.S. Noreverett, but upon a subsequent seratiny of the case it was found that the relevant Bill of Entry was presented to the Custom House on 23-5-57, while the goods were submerged in the Hooghly on 27-5-57. This has been further explained in an affidavit in opposition filed by Section Venkatesan. It is stated there that the relevant Bill of Entry was presented to the Custom-House on 23-5-1957. The goods appeared to have been submerged in the Hooghly while being carried in a boat on 27-5-57. It is stated that the liability for the payment of duty arises on the importation of goods, and as soon as the relative bill-of-entry is filed. When goods are lost after such entry has been made for home consumption, such loss must be accepted as an ordinary trade risk, for which Government is not responsible. It was, therefore, stated that no refund was payable and that the petitioners wrongly applied for refund and that the order passed by the Assistant Collector of Customs, Manifest Clearance Department for a refund amounting to Rs. 12,855/- on 6-1-1958 was without jurisdiction. The notice stated that in view of the foregoing facts it was proposed to re-open the case under Section 190A of the Sea Customs Act, and to recover amounts erroneously refunded. The petitioners' firm was asked to submit its representation, if any, against the said proposal. Later on a hearing was granted. Thereafter this rule was issued on 21-12-1958 and an interim injunction was granted. The point that arises in this case for determination is a point of law which is as follows : The question of recovery, where an ft mount of duty is stated to have been erroneously refunded, is dealt with in Section 39 of the Sea-Customs Act (hereinafter referred to as the "Act"). The relevant-part of Section 39 runs as follows : "39. Payment of duties not levied, short-levied or erroneously refunded-- (1) When custom-duties on charges have been short-levied through inadvertence, error, collusion or misconstruction on the part of the officers of customs, or through misstatement as to real value, quantity or description on the part of the owner, or when any such duty or charge, after having been levied, has been, owing to any such cause, erroneously refunded, the person chargeable with the duty or charge so short-levied or to whom such refund has erroneously been made, shall pay the deficiency or repay the amount paid to him in excess, on a notice of demand being issued to him within three months from the relevant date as defined In Sub-section (2); and the Customs-Collector may refuse to pass any good'; belonging to such person until the said duties or charges or the said deficiency or excess be paid or repaid. (2) For the purpose of Sub-section (1), the expression "relevant date" means : (d) In a case where the duty or charge has been erroneously refunded the date of refund"
(2.) It will appear from this section of the Act that it makes any duty erroneously refunded as repayable. It will be remembered that Section 39 is within Chapter V, which contains the charging sections. It is however prescribed that the amounts erroneously refunded will become repayable upon a notice of demand being issued. It also lays down the period of limitation within which this notice of demand can be issued, namely, three months from the relevant date. In the present case, the relevant date is the day on which the duty has been erroneously refunded. As I have stated above, the date of refund in the present case was 13-1-1958. The attempt to re-open the matter was in September, 1958 which is far beyond the three months' period laid down in Section 39. The attempt to re-open the case has been made under Section 190A of the said Act. The relevant provision of Section 190A is as follows . "190A. Powers of revision of Chief Customs' authority and Chief Customs-officer, (1) The Chief Customs-authority may of its own motion or otherwise call for and examine the record of any proceeding in which an officer of Customs has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may pass such order thereon as it thinks fit : Provided that no order prejudicial to any person shall be passed under this section unless such person has been given a reasonable opportunity of making a representation against the proposed order. (2) The powers conferred upon the Chief Customs-authority under Sub-section (1) may also, in the like manner and subject to the like conditions, be exercised by the Chief Customs-officer in respect of any decision or order passed under this Act by any officer of Customs subordinate to him. (3) No decision or order by an officer of Customs shall be revised under this section by the Chief Customs-authority or a Chief Customs-officer, as the case may be after the expiry of two years from the date of the decision or order."
(3.) The position is therefore shortly as follows : In this case, a certain refund has been made of duty sometime in January, 1958. Under Section 39, it would become repayable if notice of demand was served within three months from the date of refund, that is to say, from 13-1-1958. No such notice was ever served. Nevertheless, the Customs authorities are proceeding under Section 190A of the said Act, and the argument is that for the purpose of Section 190A, there is no question of serving any demand notice and the bar of limitation imposed by Section 39 does not apply to revisional powers conferred by Section 190A of the Act, for which the period of limitation is two years. Mr. Mukherjee appearing on behalf of the respondents argues that Section 39 merely provides for a summary remedy and the only effect of non-payment under Section 39, in spite of the demand notice, would be that the Customs Collector may refuse to pass any goods belonging to such person until the excess was repaid. He argues that this section cannot control the provisions of Section 190A., which applies only to the revisional authority. He has however been constrained to admit that apart from Section 39 there is no provision in the Act for the repayment of excess duty repaid. He says, however, that under Section 190A the Collector of Customs may set aside the erroneous order of the Assistant Collector of Customs ordering the refund, and then the amount will be recovered by way of a suit.;