TMI Blog1986 (1) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... ng assessed duties the said consignments had been cleared by the appellant-company. 2. The appellant-company had filed appeals in respect of the duties assessed upon two consignments dated November 20 and 21, 1969 inter alia contending the goods in question came under Item No. 28(3) and not Item No. 28 of Indian Customs Tariff. The Assistant Collector of Customs for refund had rejected the said contention of the appellant. On appeal the Appellate Collector of Customs by his order allowed the said appeal, upheld the contention of the appellant-company that the said goods were classifiable under Item No. 28(3) and, therefore, had ordered consequential refund of duty be granted to the appellant-company. Although the Government of India had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had been paid under protest, the limitation prescribed by Section 27 of the Act would have been inapplicable. The learned trial Judge correctly made a distinction between involuntary payment and payment under protest and only in the latter case proviso to sub-section (1) of Section 27 of the Act would be attracted. No doubt, when duty upon the five consignments in question were paid by the appellant-company, proceeding initiated by it for refund of the duty in respect of the two earlier consignments dated 20 and 21st November, 1969 had been pending. But the appellant did not take the precaution of recording its protest at the time of payment of duty for clearing the consignments which are now subject matter of the writ application. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duties through inadvertance, error or misconstruction. Further sub-section (4) of Section 27 of the Customs Act, 1962 has provided that save as provided in Section 26, on claim for refund of any duty shall be entertained except in accordance with the provisions of the Section 27 of the Act. Secondly, in Patel India (Private) Limited's case (supra) payment had been made under protest notwithstanding that there was no provision in Section 40 of the Sea Customs Act comparable to the proviso to Section 27(1) of the Customs Act, 1962. 7. Mr. Banerjee appearing on behalf of the respondents has on the other hand placed reliance upon the decision of the Supreme Court in the case of M/s. Madras Rubber Factory Limited v. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in its discretion makes an order for refund under Article 226 of the Constitution. But in exercising its power under Article 226 of the Constitution the court is always guided by well settled principles of law. When a party has chosen to avail of the ordinary remedy provided in the Customs Act for obtaining refund of duty paid by him but the said claim is rejected on the ground of limitation, the court by invoking its power under Article 226 of the Consitution may choose not to lift the said bar of limitation and order refund of the duty. The obligation to pay duty and obligation on the part of the Revenue to refund duty wrongly recovered both arise under the statute. When by his own conduct a party has already lost its right to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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