TMI Blog1980 (8) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ned and manufactured for the plastic glass tubes of miner cap lamp batteries made by the petitioner company. The plastic glass process is a patent process belonging exclusively to M/s. Swedish Tudor, Sweden. Originally, these fibre glass sleevings were classified under Item 73(7)(b) of the Customs Tariff as parts of batteries. Subsequently, on an objection being raised by the audit department, the respondent classified the goods under item 53 of the Customs Tariff as 'textile manufactures not otherwise specified'. 3. The contention of Mrs. Ramani Nataraan for the petitioner is that the fibre glass sleevings, cannot be construed as 'textile' in any sense of the term. According to the learned counsel the classification of the fibre glass sleevings by the respondent as textile not otherwise specified within the meaning of item 53 of the Customs Tariff was perverse. On the other hand, Mr. U.N.R. Rao, the learned Senior Central Government Standing Counsel argued that the fibre glass sleevings are received in running length and are knitted out of special kind of fibre glass yarn and consequently they fall within the meaning of textiles not otherwise specified. 4. A similar question a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but without costs. 6. In W.P. 3961, 3962, 3963, 3965, 3966 and 3968 of 1977, the petitioner has paid the duty on the basis that the fibre glass sleevings fell within item 53 of the Customs Tariff. In these writ petitions the prayer is for the refund of the excess customs duty paid. Mr. U.N.R. Rao raised a contention that the claim for refund was barred under Section 27 of the Customs Act. Section 27 reads thus- "27. (1) Any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year. (b) in any other case, before the expiry of six months from the date of payment of duty : Provided that the limitation of one year or six months, as the case may be, shall not apply where any duty has been paid under protest." In W.P. No. 3962 of 1977, in the affidavit itself it is stated that six cartons of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evied was unconstitutional and therefore the writ petitioner was entitled to the consequential relief of refund of tax. The State filed an appeal before the Supreme Court and the Supreme Court confirmed the decision of the High Court. Headnote (B) to the decision reads as follows "Where sales tax, assessed and paid by the dealer, is declared by a competent court to be invalid in law, the payment of tax already made is one made under a mistake within Section 72 of the Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. In this respect, the High Court has, in exercise of its jurisdiction under Article 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law." It is further observed "The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the authorities who function under the Act in directing refund." 11. In W.P. Nos. 4629 to 4631 of 1975 - M/s. Madras Aluminium Co. Ltd. v. Union of India, the question arose whether the petitioner therein were entitled to refund of excess duty paid under a wrong classification. Rule 11 of the Central Excise Rules provided that no duties or charges which have been paid or have been adjusted in an account "current maintained with the Collector under Rule 9, and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconception, shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment or adjustment, as the case may be". It was therefore contended before this court that the petitioners would not be entitled to refund in any event as the claim for refund was barred by limitation. Ramanujam J. speaking for the Bench after referring to State of M.P. v. Bhailal Bhai.-AIR 1964 S.C. 1006; State of Kerala v. Aluminium Industries Ltd., 16 S.T.C. 689 S.C., and Assistant Collector of Customs, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962-1—S.C.R. 549; G.S.G.A. and Co. v. State of Andhra Pradesh, 30 S.T.C. 120. Mr. U.N.R. Rao has added the decision in Shiv Shankar Dal Mills v. State of Haryana, 1980-2-S.C.C. 437. 13. No exception can be taken to the principles laid down in the above decisions which have now become well settled. In this particular case, the petitioner has filed two additional affidavits on 3-7-1980 and 27-6-1980. In these affidavits it is stated that from 1-3-1970 to 31-5-1974, the price of minor cap lamp battery (accumulator) was Rs. 50. The said price included customs duty at 60% ad valorem. During the pendency of this price list the customs levy fibre glass sleevings was revised to 100% plus 20%. The petitioner has categorically stated that this revised duty was not passed on to the consumers in view of the fact that there was an existing contract and that the price was subsequently revised with effect from 1-6-1974, 1-1-1975, 1-7-1975 and 1-7-1976. This has not been controverted in the counter affidavit. In WP 3962 and 3968 of 1977, the dates of import were 26-4-1972 and 9-4-1973 respectively. In these cases, the increased customs duty has not been passed on to the consumers as per the sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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