TMI Blog1980 (11) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner's counsel. The facts briefly are that the petitioners are claiming refund of C. V. duty paid on consignments of silicone oil/silicone fluid in all these three cases, and in the case covered by F. No. 371/3001/78-Cus. II, the Government observe that the appeal failed on account of limitation under Sec. 128 of the Customs Act, 1962. In the other two cases, the claim failed on account of limitation under Sec. 27 (1) of the aforesaid Act. The break-up is as follows :- 1. F. No. 371/3001/78-Cus. II Time barred under Section 128 Date of communication of the order-in-original. 9-3-1978 Date of filing of the appeal 1-7-1978 Delay beyond three months but within 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumably relying on Board's tariff advice No. 13/78 dated 13-3-1978 to justify their contention that the goods were not liable to C.V. duty. The Government would have gone into the question of excisability of the product in question in detail in order to determine the validity of their contentions but for the reasons set out hereunder. 6. The Government observe that all these claims are barred by limitation either under Section 27 of the Customs Act, 1962 or under Section 128 ibid. having been filed after the period of limitation prescribed under the Act had expired. The advocate at the time of hearing had argued that it is a well settled principle that if the goods are held to be non-excisable, then the time limit under Sec. 27(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon by the petitioners in respect of limitation were given at a time when only a few specific Items were under the excise net, clarifying that if an assessing authority classifies a non-excisable goods as excisable and levy duty on the same the said authority crosses the jurisdiction as such levy is not authorised under the law. It could be argued that in such cases the time bar under Section 27 would not apply because assessment itself is ab initio void. This position has undergone a change after the introduction of the Item 68 of the tariff. The Government also observe that the quasi-judicial authority functioning under the Customs Act cannot ignore the same Act and take recourse to the general law of limitation for the purpose of gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically provided had expired. In this view of the matter, the Government of India uphold the order-in-appeal in respect of revision application covered by F. No. 371/3002 and 3003/78-Cus. II. These two revision applications are rejected. 8. In respect of the revision application covered by F. No. 371/3001/78-Cus. II, the Government of India observe that the original claim for refund was in time and it was rejected as unsubstantiated by the Asstt. Collector. Having regard to the various extenuating factors, the Government are pleased to condone the delay beyond 3 months in filing the appeal vide proviso to Sec. 128 as the appeal was preferred within the maximum period of 6 months. This case is accordingly remanded back to the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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