TMI Blog1991 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the broken case contained some other materials. On 12th December, 1982 the petitioner abandoned the said broken case and the Dock Customs Authorities sent the said Bill of Entry to the Custom House. The Customs Authorities accepted the abandonment of the broken case by the petitioner on 28th January, 1983. 2. These facts are not in dispute. The goods that the petitioner wanted to import did not arrive at Calcutta Port. As such, there was no question of payment of any customs duty. The only trouble of the petitioner was that he had, in anticipation of arrival of the goods, paid the duty by filing the Bill of Entry. 3. The case of the Customs Department is that under Section 27, a claim for refund of duty has to be made before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly in a case where money is paid under the Act. If there is no provision for realisation of the money under the Act, the act of payment was ultra vires, the money had not been paid under the Act. In that view of the matter Section 23 would not apply and the State is liable to refund the tax as being recovered without the authority of law." 5. Mr. S.K. Mitra, Advocate appearing on behalf of the respondent has invited my attention to another judgment of the Supreme Court in the case of Collector of Central Excise, Chandigarh v. M/s. Doaba Co-operative Sugar Mills Ltd. [1988 (37) E.L.T. 478 (SC) = AIR 1988 SC 2052] where the Supreme Court held as follows :- "Section 11A of the Act would come into operation only when the demand is on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner abandoned all claims in respect of the goods which had arrived by the container in broken pieces. Therefore, the goods for which the petitioner had placed an order did not arrive and cross the Customs barrier at all and no question of any customs levy arises. The petitioner's case do not come within the four corners of the Customs Act at all. The petitioner had paid the duty, in anticipation of arrival of certain goods, which did not arrive at all. The petitioner therefore became entitled to get refund of duty which was paid in mistaken anticipation. A case like this will not come strictly within the ambit of Section 27 of the Customs Act, as it stood, at the material time in the year 1982. The provisions of Section 27 apply ..... X X X X Extracts X X X X X X X X Extracts X X X X
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