TMI Blog1982 (12) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... ubjected to assessment under Heading No. 70.01/05 of the Customs Tariff and charged with duty at 100%+20% and additional (CV) duty of 30%. The appellants now contend that these Glass Chatons are items of embellishments used in leather foot wear and as such entitled to concessional rate of duty by virtue of exemption notification being No. 29-Cus., dated 10-2-1979. They plead to have paid the full custom duty as well as the additional duty and the C.V. duty in ignorance of existence of said notification, the existence whereof came to their notice, according to them, only when some other importers on going in appeal, were held eligible to the benefit of the notification under reference. The appellant further plead that they came to know of the order under reference sometime in the middle of 1980 and soon after filed the claim for refund which to be exact was, submitted on 7-8-1980 and the Assistant Collector straightaway rejected the same by reference to the provisions of Section 27(1) of Customs Act, 1962 (hereinafter referred to as the Act), inasmuch as the duty in question having been paid on 23-8-1979, the refund claim was held to be filed alter the expiry of six months, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law and that in any case, it was a duty paid in ignorance of existence of the aforesaid notification and the excess amount is thus an amount which can be said both to be levied as well as paid by mutual mistake and thus becomes refundable by attracting provisions of Section 72 of the Indian Contract Act and the General law of limitation, which gives a period of three years to claim refund from the date the mistake becomes known. 7. Learned Consultant for the appellant built up his arguments very strenuously by making reference to numerious decisions covering various High Courts, as also the Supreme Court to draw support for his contention that in such situation the period of limitation, as envisaged by Section 27(1) of the Customs Act will not be applicable, which according to him is confined to cases for payment of duty legally assessable and payable and that for cases where the levy itself was not permitted by law, it is a case of recovery of duty without the authority of law or that of recovery owing to mutual mistake and that such eventualities are covered by general law of limitation. 8. The aforesaid arguments were controverted by the ld. Departmental Representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down identical restrictions of time limit, to the claim for refund, and although it was conceded that the amount of Sales-tax which had been collected from the appellant therein was not leviable and could be thus described as tax improperly or illegally collected , but it was held that once the party had come up for enforcement of the liability of the Government by reference to Sales-tax Act, the right could only be allowed subject to the restrictions which have been imposed by the provisions thereof. This was inspite of the fact, that the party had invoked Writ jurisdiction of the High Court, but even then their Lordships of the Supreme Court upheld the view expressed by the High Court to the effect that the right could not be recognised without taking into account the restrictions imposed by the legislature, so far as that particular piece of legislation by reference to which a party laid a claim was concerned. It was thus held that although the party could enforce the right of recovery by recourse to other appropriate proceedings but so long as the claim was by reference to provisions of the particular Statute, then the time limit imposed by the said Statute could not be ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear from the observations reproduced above, that unless the particular Act under consideration makes provision for any type of condonation or extension of time on cause being shown or otherwise, it is not open particularly to a Tribunal, functioning within the confines of the same Act, to induct provisions of general law of limitation into the statute and relax the time provided therein. 17. All the authorities, cited by the ld. Consultant recognise, and even tacitly approve the principle that so far as statutory authorities are concerned, they were justified in refusing to entertain and admit the claim for refund, if made beyond the time limit prescribed by the Customs Act or the Central Excise Act or rules framed thereunder, as the case may be. On going through the large number of authorities cited by the ld. Consultant, we find that none of them lend sustenance to the contention raised by him that the Authorities acting under a particular Act, could be held not bound by the provisions, as to time limit prescribed by the said Act or that an Appellate Tribunal like the present one, which is also a creature of the same Statute, could give such directions to the lower authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, no fault can be found therewith, inasmuch as the application for refund made by the company was actually time-barred, having been presented, as already stated beyond six months of payment of duty so that the Customs authorities are bound to reject it in pursuance to Section 27 of the Customs Act. 21. To the same effect were observations in the case of Wazir Sultan Tobacco Company (Delhi High Court) reported in 1981 E.L.T. 140 wherein it was observed that It may be that the Excise authorities because of Rules 11 and 173 J would not be able to entertain an application for refund but this could not prevent the petitioner from approaching the Court for appropriate direction under Article 226. 22. It is thus manifest that the relief which was provided to the party was in exercise of the prerogative of writ jurisdiction of the Hon ble High Court under Article 226 but the proposition was confirmed that so far as authorities acting under the Act were concerned, they could not be held as wrong in rejecting the claim with reference to the time bar 23. To the same effect are observations of a Division Bench of Madras High Court in a case reported as M/s. Madras Aluminiu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by coming up with technical pleas. 27. These observations, we may say with utmost respect do not seem to be applicable to the situations, such as exist in the present appeal and similar set of appeals, because firstly, the successive authorities, as already discussed, have held that the time limit prescribed by a particular statute, under which the concerned authorities are acting does bind every body including the parties concerned, and secondly ; we are aware of some of the authorities of different High Courts, where this principle of unjust enrichment has been held applicable both ways. Some of the prominent authorities on the subject are ; (i) Ogle Glass Works Ltd. v. Union of India and others ; 1979 E.L T. (J 468) (ii) M/s. Madras Aluminium Company Ltd. and others v. Union of India; 1980 Cencus (Part II) 50-D; where even while exercising writ jurisdiction, the High Courts of Bombay and Madras respectively declined to give relief to the respective petitioners before them on the ground that in the case of indirect taxes, such as Central Excise etc., the party having recouped themselves by passing on the burden of the tax, to the consumer or other dealers could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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