TMI Blog2004 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... or Customs Duty at the rates prescribed under the Customs Tariff Act. The ascertainment of Customs Tariff is dependable upon the quantity, nature, character and material composition. By a purchase order dated 7th February, 1990 MMTC imported 30 pcs. of Hot Rolled Plates from its Belgium Exporter and shipped it to a vessel under Bill of Lading No. Z-02, dated 6th April, 1990. The petitioner company purchased said plates from MMTC on High Seas basis. The Customs Authorities realised Rs. 62,57,236/- on account of duty and Rs. 27,89,527/- on account of interest totalling to Rs. 90,46,763/-. The said amount by mistake was considered H.R. plates as alloy steel plates as per tariff manual without checking the declaration given by the importer. Suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Authority relied upon two Supreme Court decisions and ultimately held that if the payment of duty is made under a mistake of law, the remedy does not lie with the departmental authorities but with the Civil Court. Accordingly, the appeal was rejected. 5.According to me, the appellate authority passed the order under undue haste. The original claim was rejected being time-barred. Therefore, unless the delay condoned there is no scope of the authority to go into the question of recovery of purported excess Customs duty. The appellate authority did not adjudge the issue even after formulating the point and thereby committed a mistake in realising the point to come to an appropriate conclusion. In other words, he completely by-pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature, if permited, it would defeat the provisions of any law. In such of these cases, the consideration and object of an agreement is said to be unlawful. Even agreement of which the object or consideration is unlawful is void. In the legal battle, according to me, one has to proceed step by step to achieve the goal. Such steps are provided in the law. The law is to be truly interpreted to think about the sequence of a claim in between the parties. Question of nullity is a product of void principle whereas question of limitation is a product of voidable principle. A Court or Tribunal or forum of any authority can condone the delay whenever it is applicable in the law or wherever the condonation expressly of impliedly provided for the sake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution of India, the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner. It is true that in some cases the period is fixed beyond which Court should not grant relief but that is not an inflexible rule. It was further held that normally speaking in a society governed by Rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act. He relied upon AIR 1999 SC 22 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai Ors.) to establish that in case of any illegality there cannot be any bar for the writ Court to interfere in the matter and pass an appropriate order in connection thereto in spite of having alternative forum. Learned Counsel appearing for the petitioner before concluding the same contended before this Court that whenever it was detected by the petitioner that an excess amount has been recovered by the authority, the application has been made before it to consider the case of refund well within the prescribed time as given by the law of limitation which will be otherwise applicable herein. Mistake of law cannot be guided by the statutory lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple may not be applicable. The authority concerned did not consider the same apparently as available in the record. Therefore, even the rejection as made by the authority and the appellate authority on that score cannot be said to be free from doubt leaving aside the part of applicability of general principles of Limitation. If I follow the procedure correctly in case of refund, the Court under Article 226 of the Constitution of India, has power to direct refund unless there has been avoidable laches and in doing so the Supreme Court has given a guideline not to follow the inflexible rule particularly when the prayer is made within the three years period which are normally for the purpose of due consideration of the cases. Here admitted po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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