1990 (6) TMI 170 - AT - Income Tax

Appeal dismissed as appellant not a Government entity. Limitation period starts from duty payment date.

The Tribunal dismissed the appeal, ruling that the appellant is not a Government entity, therefore the one-year limitation period does not apply. ... Refund - Limitation Issues Involved:1. Whether the appellant can be said to be a Government and the limitation period is one year.2. Whether the appellant can be said to be an individual and the import is made for the personal use of the appellant, and whether the time for limitation is one year in this case.3. Whether the appellant is entitled to the benefit of Section 18 of the Customs Act in this case, as contended by the learned Advocate, and whether the period of limitation starts from the date on which the Assistant Collector's letter was received by the appellant.Detailed Analysis:Issue 1: Whether the appellant can be said to be a Government and the limitation period is one yearThe learned Advocate for the appellant argued that the appellant, being a corporation with 100% shares held by the Government, should be considered as a Government entity, thereby extending the limitation period to one year. The appellant relied on the Supreme Court decision in AIR 1975 S.C. 1331 - Sukhdev Singh v. Bhagatram, which discussed the status of statutory authorities under Article 12 of the Constitution.However, the Tribunal found that the cited Supreme Court decision was not applicable to this case. The Tribunal noted that the Supreme Court had clarified that employees of statutory bodies are not servants of the Union or State but are 'authorities' within the meaning of Article 12. Consequently, the Tribunal held that while the appellant might be an authority under Article 12, it cannot be considered a Government entity. Thus, the longer period of limitation of one year was not applicable to the appellant.Issue 2: Whether the appellant can be said to be an individual and the import is made for the personal use of the appellant, and whether the time for limitation is one year in this caseThe appellant contended that it should be considered an individual under Section 27 of the Customs Act, 1962, and that the imported goods were for personal use, thus qualifying for a one-year limitation period. The appellant cited the Law Lexicon definition of 'individual' to support this argument.The Tribunal rejected this contention, stating that the goods were not imported for personal use but for testing purposes, which involves commercial activity. Personal use implies direct personal utilization without any commercial intent. Therefore, the extended period of limitation was not applicable.Regarding whether the appellant is an individual, the Tribunal noted that the Customs Act distinguishes between 'person' and 'individual.' The General Clauses Act defines 'person' to include any company or association of individuals, but 'individual' is not explicitly defined in the Customs Act. The Tribunal concluded that the appellant, being a corporation, is a 'person' but not an 'individual' under Section 27(1)(a). Thus, the six-month limitation period applied.Issue 3: Whether the appellant is entitled to the benefit of Section 18 of the Customs Act in this case, as contended by the learned Advocate, and whether the period of limitation starts from the date on which the Assistant Collector's letter was received by the appellantThe appellant argued that the assessment was provisional under Section 18 of the Customs Act, and the limitation period should start from the date they received the Assistant Collector's letter informing them of the excess duty paid.The Tribunal disagreed, stating that the payment of duty was final and the intimation from the Assistant Collector did not alter the original date of duty payment. The Tribunal referenced a decision of the Special Bench of the Tribunal reported in 1989 (40) E.L.T. 353 (SB), which held that the limitation period starts from the date of duty payment, not from the date of any subsequent intimation. The Tribunal also cited the Supreme Court decision in Miles India Limited v. Assistant Collector of Customs, 1987 (30) E.L.T. 641 S.C., reinforcing that statutory authorities must adhere to the prescribed limitation period.Conclusion:The Tribunal dismissed the appeal, holding that:- The appellant is not a Government entity, hence the one-year limitation does not apply.- The appellant is not an individual, and the goods were not for personal use, thus the six-month limitation applies.- The limitation period starts from the date of duty payment, not from the date of the Assistant Collector's intimation.