9911796707
TMI Blog1996 (9) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... if and Jhajha where the company received unmanufactured Biris and the same were being done in the warehouses. The company was duly licensed under Rule 143 of the Central Excise Rules (hereinafter referred to as "the said Rules") as a warehouse for the purpose of receiving unmanufactured tobacco at Biharsharif and Jhajha and hand-made manufactured biris are covered under the Central Excise Tariff. The said Biris are required to be assessed by the proper Central Excise Officers on presentation of applications for removal in Form AR 1 by the petitioner. The proper Central Excise Officers are required to assess the amount to duty in the assessment memorandum provided in Form AR 1. The duty so assessed by the Central Excise Officers has to be deposited in full in authorised Bank. The Biris could be cleared from the factory only after the assessment amount is deposited in the Bank and the clearance is supervised by the proper Central Excise Officers and on G.P. 1. (Gate passes for duty paid clearance). The gate passes are required to be signed by the proper officer showing the actual time of clearance from the factory over the dated signature of the proper Central Excise Officer. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the order dated 10-12-1980 and 8-2-1990 on the sole ground that the petitioner did not file the applications for refund of the claims within six months in terms of Rule 11 of the Central Excise Rules. Copies of the said orders are Annexures-2 and 3 to the writ petition. 6.The petitioner then preferred an appeal before the Collector (Appeals), Central Excise, Calcutta, separately against the aforesaid two orders. The Collector also rejected the appeals on 24-9-1980 and confirmed the order passed by the Assistant Collector. The petitioner then went in revision to the Government of India against the said order of the Collector and the said revision applications remained pending for some time. Thereafter when the Custom, Excise and Gold (Control) Appellate Tribunal was set up in the year 1982, these revision applications were transferred to it for disposal, which too, after hearing, rejected the same in terms of the orders dated 7-12-1984 which is Annexure-5 to the writ petition. 7.The petitioner has, therefore, come to this court challenging the validity of the aforesaid order passed by the Collector (Appeals) and Customs, Excise and Gold (Control) Appellate Tribunal. 8.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner on 16-3-1979 and the applications for refund were filed on 24-12-1979, i.e. much beyond the expiry of the period of six months. The learned Counsel for the petitioner relied on a decision of the Supreme Court in the case of M/s. Shiv Shankar Dal Mills v. State of Haryana - (A.I.R. 1980 S.C. 1037). 10.On the other hand, Mr. Ganesh Prasad Jaiswal, Additional Standing Counsel, Central Government, submitted that the respondent authorities have no power to pass any order for refund of the duty on the application for refund which was filed much beyond the expiry of six months. The learned Counsel referring to Section 11B of the Central Excises and Salt Act, 1944, submitted that the provision is mandatory and the authorities under the Act cannot extend the said period of six months in entertaining such application for refund. The learned Counsel relied on two decisions of the Supreme Court namely, M/s. Madras Rubber Factory Ltd. v. Union of India and others - (AIR 1976 S.C. 638) and Miles India Limited v. Assistant Collector of Customs - 1987 (30) E.L.T 641 (S.C.). 11.Before appreciating the rival contentions of the parties, it would be appropriate to notice Section 11-B of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 14.While interpreting the said provision, it was held by the Supreme Court that the application filed under the Customs Act beyond the period of six months was rightly rejected by the authorities in view of the fact the duty was not paid by the assessee under protest. 15.In the case of Miles India Limited v. Assistant Collector, Customs (supra), the Apex Court, while interpreting Section 27 (1) of the Customs Act, observed as follows : "After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim of refund as they were bound by the period of limitation provided therefor under Section 27 (1) of the Customs Act, 1962, learned counsel for the Appellant sought leave to withdraw the appeal. We accord their leave to withdraw the appeal but make it clear that the order of the Customs, Excise & Gold (Control) Appellate Tribunal suffers from no informit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. The learned Counsel refers to certain decisions of this Court to that effect. We shall assume for the purpose of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the authorities under the Act to act contrary to the aforesaid statutory provision. We, do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Cour ..... 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