TMI Blog1983 (12) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... e with a decision of the Tribunal and practice obtaining in the Tribunal, therefore, the appellants have filed 9 more appeals so as to cover all the appeals disposed of by the Appellate Collector by the said order. This order will dispose of all the ten appeals. 3. The appellants by Bill of Entry Nos. ID. 63/8-12-1970, 74/9-9-1970, 65/11-1-1971, 118/18-9-1970, 78/13-1-1971, 33/6-10-1970, 77/15-9-1971, 78/12-1-1970, 7/2-2-1971 and 143/18-11-1971, between the period 8-12-1970 to 18-11-1971 imported 10 consignments of V.P. Latex. The goods were assessed under Item 82(3) of I.C.T. with countervailing duty under T.I. 15A of C.E.T. The appellants applied to the Asstt. Collector of Customs for refund of duty claiming re-classification, of the goods under Item 78 I.C.T. but the same was rejected. In appeal before the Appellate Collector of Customs, Madras, the appellants claimed re-classification not under Item 87 of I.C.T. as they did before the Assistant Collector but under Item 39 of the I.C.T. The Appellate Collector rejected the appellants claim and upheld the original classification under Item 82(3) of I.C.T. read with 15A of the C.E.T. In the meanwhile, the Supreme Court deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original claim was under Item 87 of I.C.T. Appropriate consequential refund as a result of re-classification under Item 39 of I.C.T. should be granted to them. 7. The question thus arising in this appeal is : in a case where the appellant has made a claim for refund claiming classification under a particular heading or Item and later the proper classification is found to be under some other heading or Item - such classification resulting in refund of larger amount than admissible under the heading or Item originally claimed, whether the differential amount as a result of such proper classification should be refunded to the appellant or refund should be limited to the amount which would have been admissible under the Item or heading originally claimed. 8. Section 27(1) of the Customs Act, 1962 prescribed a time-limit for making claim of refund. Admittedly, the appellants made an application claiming refund in which they claimed classification under Item 87 of the I.C.T. It is to be seen whether limitation stipulated in Section 27 of the Act would be applicable when appellant at a later stage after expiry of the time-limit set out in Section 27 of the Act claimed classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evise, consistently with the provisions of the Act and the Rules made thereunder its own procedure based on general principles of justice, equity and good conscience. In Sunder Lal Ors. v. Balwant Hanmant Alurkar AIR 1975 Delhi 108, the provision was held applicable to proceedings before Motor Accidents Claims Tribunal though the rule in terms was not applicable either by any provision under Motor Vehicle Act or by any rule framed thereunder. 11. The provision has also been held applicable to proceedings under Workmen s Compensation Act, Petition under Article 226 of the Constitution of India, under Provincial Insolvency Act. Tribunal constituted under Displaced Persons (Debts Adjustment) Act, proceedings before Election Tribunal and before many other similar bodies. 12. From the foregoing, there can be no doubt that the Rule would be applicable even to the claims made under Customs Act, 1962 before the Tribunal. This would also mean that the precedents dealing with interpretation of the rule would also be applicable in proceedings under the Act before the Tribunal. 13. The principles to be borne in mind for allowing an application for amendment are subject-matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerable importance for the present appeal. Counsel for the appellants relying on observation of Beaman Judge in a case inter alia submitted that one of the tests to be applied to an application for amendment was - could the party asking to amend obtain the same quantity of relief without the amendment. The arguments advanced and the observations of the Supreme Court for proper appreciation are extracted below : Learned Counsel for the appellant referred us to the decision in Kisandas Rupchand v. Rachappa Vithoba and placed great reliance on the observation of Beaman J. at p. 655 : In my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment? If not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs? If not, then the amendment ought not, unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present context does not mean every fact which it is material to be proved to entitle the plaintiff to succeed as was said to Cooke v. Gill (4) in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Uncos Property Corporation Ltd. (5) and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words `new case have been understood to mean `new set of ideas , Dornon v. J.W. Ellis Co. Ltd. (6). This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. 16. Another Supreme Court decision on the same point is Haridas Girdharidas Ors. v. Varadaraja Pillai and Anr. - AIR 1971 S.C. 2366, where an application for amendment though barred by time on the date when it was made was granted by the Supreme Court. 17. As to the nature and scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med v. Nabil Ahmed Khan, AIR 1972, Allahabad, following AIR 1966 S.C. 1267). 21. In view of the foregoing, it would not be appropriate to hold that an amendment would take effect from the date it is allowed. In view of overwhelming case law on the point an amendment except in the two category of cases mentioned in para 20 after it is allowed would relate back to the time the claim was originally made. This would also be applicable of a new ground if allowed to be raised at the Tribunal or appellate stage. 22. When the present case is examined in the light of foregoing, it is noticed that appellants claimed classification under Item 87 of I.C.T. before the Assistant Collector of Customs. The order of the Appellate Collector shows that before him the appellants claimed classification under heading 39 I.C.T. and Collector disposed of the claim on merits after examining the appellants claim in the light of this item. The controversy for decision before the Appellate Collector as also before the Tribunal is proper classification and collection of proper duty. The appellants claim at all stages was a claim for proper classification and refund of excess duty on such proper classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised on the ground of limitation. The order did not enter into question as to what would be the effect if the plea were allowed to be raised and accepted; from what time it would take effect. In the present case, the plea has been accepted. The two cases are not identical and are different. The ratio of the decision is not applicable to the present appeal. 25. There is one more reason why the appellants claim for refund consequential to classification under Item 39 of I.C.T. must be accepted. On behalf of the appellants, it was urged that they were interveners before the Supreme Court in M/s. Dunlop India s case. This was not disputed by the learned Departmental Representative. The judgment of the Supreme Court in para 5 mentions that there were several interveners in the appeal and the entire Tyre Industry was interested in the matter. A reading of the judgment as reported in AIR 1977 S.C. 597 shows that at the top of the judgment, the appellants M/s. Premier Tyres Ltd. were intervener No. 5 and were represented by Mr. I.N. Shroff, Advocate. The appellants this contention is well founded. Para 40 of the judgment shows that appellants M/s. Dunlop India Ltd. and their Agents h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction had wide powers to pass any order, in view of the foregoing, would not be available in the case. 29. Apart from the above, Section 27(3) of the Customs Act, 1962 provides for refund of amount to a person without his making any claim in that behalf if such refund becomes due as a result of any order passed in appeal or revision. In the present appeal, after the goods are found properly classifiable under Item 39, this provision would take care of refund to the appellants even without their making a claim for it, if a claim specifically mentioning Item 39 I.C.T. were considered necessary. This is subject to observations already made above. 30. A doubt has been expressed that if on proper classification more amount becomes realisable from the Assessee, should such excess or differential amount be realised from him consequent on such proper classification. The question does not arise for determination in the present appeal and need not be answered. It may, however, be stated that an answer to this question would depend on whether the Department has kept its claim alive for such excess amount. 31. In view of the foregoing, answer to the question for decision in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly. The words, refund of any duty paid by him clearly refer to the amount of duty paid by the assessee. The assessee may claim that no duty was payable at all and in the consequence may ask for refund of the entire duty paid. Or, he may claim that the duty was collected from him in excess and after setting out the grounds of his claim he may claim refund of the amount which he feels was in excess collected. In either case, he is to specify what part of the amount paid by him should be refunded to him. Such specification of the amount can be done in two ways - directly by specifying the amount in rupees and paise and indirectly by setting out the grounds of the claim and asking for the consequential refund. The important thing to note is that in either case the assessee has to set out the size of his claim, i.e., the quantum of money of which he is claiming refund. And this has to be done within six months from the date of payment of the duty. After six months, he cannot claim any refund unless he had originally paid the duty under protest or under provisional assessment. The appeals before us are not cases of payment of duty under protest or under provisional assessment. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though the goods were correctly classifiable under Item 39 I.C.T. the appellants cannot be given refund of more than what they had claimed within the prescribed time-limit of six months. Their original challenge to the assessment was not an open-ended one but was restricted to a particular amount; it cannot serve as an umbrella to cover much larger amount asked for by them at a belated stage. The question whether the authorities acting under the Customs Act, including this Tribunal, had any power to waive the time-bar has been considered by practically every Bench of this Tribunal and it is the considered decision of all the Benches that the said authorities as well as the Tribunal have no power to waive or relax the time-bar, whatever may be the justification. I need cite only one such case which is reported at 1983 E.C.R. - 242D (CEGAT) = 1983 E.L.T. 2457 (Tribunal) - Miles India Ltd., Baroda v. Collector of Customs, Bombay. If because of the mandatory time-bar the appellants were precluded from filing a fresh claim or a supplementary claim directly after six months they cannot be allowed to circumvent the time-bar by the backdoor method of amending the grounds of then refund c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection and its own set of enforcing as well as adjudicating authorities and that the provisions of Limitation Act did not apply to central excise appeals before the Appellate Collector. What this Tribunal held in relation to the Limitation Act is also applicable with equal force to the Code of Civil Procedure. Therefore, in my view it is not correct to seek the aid of any provision under the C.P.C. to extend the time-limit of Section 27 of the Customs Act. As regards the second case of M/s. Dunlop India Ltd. and Madras Rubber Factory Ltd., the facts of that case, as seen from paras 3 and 4 of the judgment [1983 E.L.T. 1566 (S.C.)], were different. In that case, the two assessees filed their refund claims originally itself under Item 39 I.C.T. In other words, those two assessees originally itself claimed the increased amount of refund. It is further seen from para 40 of the said judgment that the Department s counsel sought to oppose their claims in respect of a few consignments on the ground that in certain Bills of Entry of Dunlop India Ltd., their agents had given the I.C.T. Item No. 87 with regard to the imported V.P. Latex. The Supreme Court repelled this contention saying that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional duty (C.V.D.), classification under T.I. 15A of C.E.T. calls for no interference and is upheld. EDITORS COMMENTS The Madras High Court in the case of Universal Radiators v. State of Tamil Nadu - 1974 (33) S.T.C. 341 (Mad.) has held that if the appeal has been filed within time, the additional, alternate or new grounds can, subsequently be raised without any time-limit. On the same analogy if a refund claim is filed well within time, additional or new grounds can be raised without any limitation of time. The Appellate Tribunal itself in the case of Sunrise Electric Corp. - 1983 E.L.T. 2465 has held that the classification dispute can be raised for the first time at second appeal stage. Further, in the case of Kota Box Factory - 1984 (15) E.L.T. 463 Tribunal has held that an amendment in the pleadings can be allowed at any stage of proceedings and even at second appeal stage because there is no time-limit for doing so. In fact, the proceedings under Sections 11A and 11B of the Central Excises and Salt Act, 1944 are in the nature of re-assessment and therefore, the entire proceedings are at large before the authority considering the refund claim. Besides, this Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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