9911796707
TMI Blog1987 (7) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of each of the aforesaid consignments, as follows : (1) Bill of Entry No. 1977, dated 20th September, 1978. Rs. 33,541.40/- (2) Bill of Entry cash No. 467, dated 5th October, 1978 . Rs. 2,388.54/- 2. After the aforesaid amounts of additional duty were paid by the petitioners, they realised that the said methyl cellulose was not classifiable under Item No. 15A of the First Schedule to the Central Excises and Salt Act, 1944, and the same was not subject to duty under that tariff entry. The petitioners say that the said methyl cellulose fell for classification under residuary entry of the First Schedule to the said Act viz. Item No. 68. However, by virtue of a notification issued under the provisions of Section 3(6) of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners that the amounts were erroneously refunded and that he called upon the petitioners to show cause under Section 28 of the Customs Act, 1962, as to why the amounts specified above in the said notices be not recovered from the petitioners. The petitioners by their reply darted July 27, 1980, pointed out that the collection was without jurisdiction and, therefore, without the authority of law and that the amounts have been rightly directed to be refunded to the petitioners and that, therefore, there is no question of recovering the amounts back from the petitioners. 5. Thereafter the petitioners received a show cause notice dated August 4, 1980 from the Additional Secretary to the Government of India indicating thereby that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. The Government further observe that with the introduction of Item 68 in the Central Excise Tariff, w.e.f. 1-3-1975, which covers "All other goods, not elsewhere specified ......" all the goods have become excisable and, therefore, there can be no question of the levy being treated as a case of mistake of law or levy outside the tariff more so when in the present case it is not disputed that the goods are classifiable under Item 68 of Central Excise Tariff if not under Item 15A of Central Excise Tariff. In the circumstances Government observe that there was no lack of jurisdiction though while acting within jurisdiction the assessing authority may have erroneously classified the goods or may have wrongly interpreted the scope of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case of the Supreme Court in the case of Shiv Shanker Dal Mills v. State of Haryana, reported in A.I.R. 1980 S.C. 1037, and the relevant portion is as follows : "The petitioners who had, under mistake, paid larger sums which, after the decision of this Court holding the levy illegal, have become refundable, demand a direction to that effect to the market committees concerned. There cannot be any dispute about the obligation or the amounts since the market committees have accounts of collections and are willing to disgorge the excess sums. Indeed, if they file suits within the limitation period, decrees must surely follow. What the period of limitation is and whether Article 226 will apply are moot as is evident from the High Court's judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case came to the conclusion that because of the notification there could have been no countervailing duty, he was right when he said that the collection was without jurisdiction and, therefore, there is no question of limitation and that, therefore, the amount was rightly ordered to be refunded. 10. In fact all such arguments had been negatived by various judgments, some of which had been cited before the Government at the time when the arguments were advanced. However, the Government did not agree with -the contentions and that is how the petitioners have been compelled to file the present petition. This conduct also has been deprecated by our Court and Mr. Talyarkhan has referred to a judgment in the case of the Svadeshi Mills Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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