TMI Blog1981 (9) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Indian Customs Tariff. The Customs authorities assessed duty amounting to Rs. 44,79,374.40 on the goods, and the petitioners paid the duty on April 2, 1975. 3. While clearing the goods, the petitioners noticed that 161 cartons were missing. The petitioners enquired with the Bombay Port Trust and the Bombay Port Trust issued a short-landing certificate on September 6, 1975. The petitioners thereafter filed a refund application for refund of Rs, 18,030/-being the Customs duty paid on the missing 161 cartons which were short-landed. 4. On October 20, 1976, the Assistant Collector of Customs, Manifest Clearance Department, rejected the refund application as time-barred on the ground that the claim was not received within six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of duty : Provided that the limitation of six months shall not apply where any duty has been paid under protest. Explanation. - Where any duty is paid provisionally under section 18, the period of six months shall be computed from the date of adjustment of duty after the final assessment thereof." It is obvious from the mere reading of the Section that the applications for refund contemplated by this Section are those where the recovery of duty is not without jurisdiction. It has been repeatedly held by this Court while considering the ambit of Rule 11 of the Central Excise Rules that the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould issue a writ of mandamus directing the Department to grant the amount of refund claimed. The learned Counsel placed reliance upon the provisions of Article 256 of the Constitution of India and submitted that the recovery of taxes was without any authority and jurisdiction and in such cases, the Department cannot take shield behind the provisions of limitation prescribed by Section 27 of the Act. The submission is that in cases where the provision of Article 256 of the Constitution of India are violated, the High Court can issue a writ of mandamus irrespective of the provisions of the limitation prescribed under Section 27 of the Act. In support of the submission, the learned Counsel placed reliance upon the two decisions of the Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X
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