TaxTMI 
TaxTMI 
1983 (1) TMI 280
X X X X Extracts X X X X
X X X X Extracts X X X X
....al and to be disposed of as such are that the appellants imported an article described as Indian Chemcial Reagent Strips from abroad and that there are repetitive imports and it has been their persistent contention that these are to be classified under Tariff Item 90.17/18 of Indian Customs Tariff on the ground that the same were diagnostic medical tools. It is further revealed that they contended alternatively that if the aforesaid goods were treated to be not falling udner Tariff Item No. 90.17/18 then they ought to be classified under Tariff Item No. 38.10/19 as "chemicals not elsewhere specified". 3. However, the Custom authorities throughout assessed these goods under Tariff Item No. 48.01/21 holding it to be falling undr the heading "Papers and paper board all sorts". The appellants pleaded to have been paying custom duty from time to time on the imports made by them as assessed by the custom authorities. It goes without saying, as it is nowhere pleaded, that these payments were made without protest. 4. It is now stated that while this controversy was going on, the appellants acquired knowledge of a Government Notification being Notification No. 198/Cus./1, dated ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amount irrespective of any time limit imposed by Section 27 of the Customs Act, becasue of Atricle 265 of the Constitution, holding that this contention was not enable before the Departmental authorities and further adding that, "equity belongs to the vigilant and not to the indolent". 7. The appellant has assailed these orders in the present appeal on the same contentions, as reproduced in the order of the Appellate Collector, namely, that the duty had been paid in ignorance as the appellant did not know about the existence of Goverment Notification No. 198/Cus/1, dated 17-9-1977, exempting such articles from the additional customs duty and that it had to be deemed to be duty collected without the authority of law and that the lower customs authorities have gone wrong in rejecting the claim of the appellant by applying the time limit set in Section 27 of the Customs Act. It is further contended that the refund claim covered a period of three years, preceding the date it was made, and since it was a payment made under mistake of law, the normal law of limitation would be attracted and the period of three years, as contemplated by Limitation Act, 1963 ought to apply. The order....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horities also appeared to be unaware of the existence of the notification, otherwise they would not have charged additional customs duty nor the appellant would have paid had they been in the know of this notification, and that the application for refund could not be treated to have been made with reference to the provisions of Section 27 of the Customs Act but under general rights and for that purpose the restrictions imposed by Section 27 in the matter of time limit could not be invoked by the customs authorities. He asserted that the appellant had not even applied by reference to Section 27 of the Customs Act. Although he conceded that the application was in form `A' as prescribed by the customs authorities, which also contained a foot note referring to the time limit set out by Section 27 of the Customs Act but contended that this was so, because the Department required the applications to be made in the proforma, which according to him was not a statutory one but the appellants had made their position clear in the covering letter, pointing that the amounts had been paid under mistake, and were recoverable with reference to their general rights, and as such general period of li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and makes a claim with reference to a particular Statute, then it is not open to that party to urge that the restrictions imposed by such Statute on the exercise of that right as to the entertainability of the claim, are to be ignored. This proposition was enunciated in very unequivocal terms by their Lordships of the Supreme Court in a case reported as M/s Burmah Construction Co. v. State of Orissa; AIR 1962-SC 1320. This case finds reference in the authority of the Calcutta High Court relied upon by the Learned Departmental Representative; namely Inchek Tyres Ltd. v. Assistant Collector of Customs and Others; 1979 Cencus-360D. 14. In the case before the Supreme Court which relates to the interpretation of the provisions of Orissa Sales Tax Act, and Section 14 thereof, which lays down identical restrictions of time limit, to the claim for refund, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... so, would be entrenching upon the preserves of the Legislature. This authority also stressed that the Appellate authority, as appointed under the provisions of U.P. Sates Tax Act, was not "Court" and that provisions of Section 14(2) of the Limitation Act could not be invoked in proceedings before such an Appellate authority or Tribunal. 18. This authority is thus a complete answer to the submissions made by the Ld. Counsel for the appellant, by reference to some authorities, urging that in view of those authorities providing relief to the concerned parties ordering refund of the amounts claimed in spite of concerned authorities under particular Act having declined to give relief by way of refund on application made to them, because of the time limits imposed by the particular statute, because it is abundantly 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 ti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of the appellant, that claim for refund even though made after the statutory period of time limit, provided by a particular Act, could be allowed ignoring the said statutory period of limitation. 22. The same proposition, namely, that such statutory authorities were always within their rights in not admitting claims filed beyond time, has been recognised in other authorities also, wherein the refunds were ordered to be made by the High Courts in exercise of writ jurisdiction by invoking the principles envisaged by Section 72 of the Contract Act or in suits fileds under the provisions of Section 72 of the Indian Contact Act itself. For instance, it has been held in the case of M/s. Premraj and Ganpatraj & Company (P) Ltd. v. Assistant Collector of Customs and others; 1977 E.L.T. (J 166)that : "In so far as orders of the respondents are concerned, 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 Custom authorities are bound to reject it in pursuance to Section 27 of the Customs Act." 23. To the same effect were o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....do not feel persuaded in accepting the plea of the Ld. Counsel on behalf of the appellant that the position should be treated differently because here was a case where duty had been realised, which could not be levied and as such upholding the stand of customs authorities that the refund claim was not entertainable being barred by time was tantamount to allowing the State to retain the money not legally recoverable. Ld. Counsel did make reference to some cases in this regard, the most notable being that of M/s Madras Port Trust v. Hymanshu International: 1979 E.L.T. J 396 and that of M/s Hindustan Sugar Mills v. State of Rajasthan and others; A.I.R. 1981 S.C. 1681, where their Lordships of the Supreme Court were pleased to censure the conduct of the Government in resisting the claims made by the parties by way of civil suits by raising technical plea of limitation of time and in observing that it did not behave the Government to defeat just claims of citizens by coming up with technical pleas. 29. 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 th....