TMI Blog1997 (6) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation contemplated under Section 27 of the Act, is valid in law. With respect, we think that it is not. 3.The short facts of the case are as follows : - The respondent/company is engaged in the manufacture of newsprint paper. They are using wood pulp as the raw material for the manufacture of newsprint. In respect of a consignment of wood pulp imported by the respondent/company, customs duty of Rs. 22,834.11 at the rate of 5% as basic duty and on the value of the consignment was demanded by the Assistant Collector of Customs and the respondent paid the same as per bill of entry cash No. 611, dated 17-2-1983. The respondent has imported the said wood pulp only for the purpose of using the same for manufacture of newsprint and hence the wood pulp is exempted from the whole of customs duty as per Notification No. 233, Customs, dated 2-8-1976 issued by the Central Government. The authorities had collected the customs duty without any lawful authority and therefore they are liable to refund the same to the respondent. 4.On 14-8-1983, the respondent made an application to the appellant for the refund of the duty on the ground that the said sum had been collected fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no scope for entertaining the refund application after six months. No protest has been made by the respondent while paying the duty. If the amount was unlawfully collected, the respondent's right to refund is governed by the statute itself which prescribes the conditions and that the respondent is bound to fulfil these conditions before claiming refund. 7.Shivaraj Patil, J. after discussing the rival submissions made by the counsel for the parties, passed the following order : "In the view I propose to take, it may not be necessary to go into the question whether the application for refund of duty paid was made within time. The facts of the case are that the petitioner sent the application by registered post on 14-8-1983, which was received by the 1st respondent on 1-9-1983. The petitioner has not produced either the postal receipt or the acknowledgement for having sent the application on 14-8-1983, but all the same, the respondents did not deny that the application was received by registered post on 1-9-1983. No counter affidavit is filed denying that the application was sent on 14-8-1983. Further, having regard to the fact that the delay was not inordinate, in as much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where in application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section and the same shall be dealt with in accordance with the provisions of sub-section (2) : Provided further that the limitation of one year or six months, as the case may be, shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. Explanation : For the purposes of this sub-section, "the date of payment of duty and interest, if any, paid on such duty in relation to a person, other than the importer," shall be construed as "the date of purchase of goods" by such person. (2) X X X (3) X X X (4) X X X." 10.Under this section, refund can be claimed of (1) duty paid by a person in pursuance of an order of assessment; or (ii) duty borne by him. It is clear from the Explanation to sub-section (1), which relates to the starting point of the period of limitation viz., the date of payment of duty that the claimant may ordinarily b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34) E.L.T. 449]; and Collector of Central Excise v. M/s. Doaba Co-oper. Sugar Mills Ltd. [1988 (37) E.L.T. 478 (S.C.) = 1988 (Supp) S.C.C. 683]. 13.The decision reported in 1994 supp. (3) S.C.C. 86, is also a case of an application made under Section 27 of the Act. In that case, the Supreme Court has held that the authorities under the Act must necessarily operate within the four corners of the Act and that they have no option but to reject an application filed beyond six months. The Supreme Court had also, in this connection, noticed the decision reported in Collector of Central Excise, Chandigarh v. Doaba Co-op. Sugar Mills Ltd. [1988 (37) E.L.T. 478 (S.C.) = 1988 Supp. S.C.C., 683] and quoted the observations made by S. Mukherjee, J., as he then was, in Paragraph 6 of that judgment, in view of the fact that it puts forward another aspect of the controversy relating to refund. The observations of S. Mukherjee, J., as he then was, which is quoted by the Supreme Court in 1994 Supp. (3) S.C.C. 86, runs as follows : "It appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment in 1988 Suppl. S.C.C. 683, was also noticed by the Supreme Court in this case and following the above ruling, the Supreme Court was of the opinion that the direction contained in Clause 3 of the impugned order was unsustainable in law. The Supreme Court has also observed that it is not permissible for the High Court to direct the authorities under the Act to act contrary to the statutory provisions and that the power conferred under Articles 226 and 227 of the Constitution 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 and therefore, it cannot be invoked for directing the authorities to act contrary to law. 15.Mr. V. Shanmugham, learned Counsel for the respondent, relied on the decision reported in Kay Foam Ltd. v. Union of India [1988 (34) E.L.T. 149, (Bom.)] wherein a Division Bench held that the duty recovered without any authority of law cannot be retained by the authority and the provision for filing application within a period of six months from the payment of duty has no application to such a case. The Bench has also held that it is open for the tax payer to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility either by express exclusion of the jurisdiction of the Civil Court or by clear implication does not affect the jurisdiction of the High Court to issue high prorogative writs. 17.Placing reliance on the above decision, Mr. V. Shanmugham contended that the respondent has [invoked] the alternative remedy by invoking its jurisdiction under Articles 226 of the Constitution. As already seen, the respondent has filed an application for refund before the appellant, an appeal before the Collector of Customs (Appeals) and a further appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, Madras, and all the three authorities have rejected the application for refund since the claim for refund was time barred under Section 27 of the Act. Challenging all the three orders, the respondent, as already noticed, has filed the present writ petition for a certiorarified mandamus to call for the records of the three authorities, quash the same and consequently direct the appellant to refund the sum collected as customs duty. The said writ petition was contested by the appellant by filing a counter affidavit and considering the submissions made by both parties, the learned singl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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