2001 (7) TMI 172

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....j and Boyce Manufacturing Company Limited, the appellant before us, placed an order for two horizontal boring and milling machines. The supplier shipped the goods in 28 cases. Prior to their arrival, the appellant filed the bill of entry for the goods, had them assessed to duty, and paid the duty. 2. One of the 28 cases did not arrive in Bombay. On such short shipment being discovered, the appe....

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....rt in Miles India v. Collector he held that the claim was barred by limitation and dismissed it. This decision has been confirmed on appeal by the Collector (Appeals) and apparently, no appeal has been filed against that order. In the meantime, the supplier of the machine supplied to the appellant the goods that were contained in the case initially short landed and the appellant paid on 28-12-1983....

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....e Board of Trustees had filed a claim for refund of duty which was paid twice, first on a consignment in which goods were short shipped, secondly when the short shipped goods were received. The claim for refund was made after the payment of duty on the second occasion and dismissed by the department on the ground that the refund ought to have been claimed in respect of the duty which was initially....

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....m that is now made before us should be treated as the claim in respect of the duty that was initially paid. We must also note that once the Collector (Appeals) held that the claim in respect of the duty initially paid not to be barred by limitation, it was not open to the Assistant Collector to refuse to follow that order. However, if the department were of the view that order was incorrect the ri....