Customs, Excise and Gold Tribunal - Delhi
Afro Asian Association vs Collector Of Customs on 30 December, 1982
Equivalent citations: 1983ECR183D(TRI.-DELHI), 1983(12)ELT372(TRI-DEL)
ORDER
1. This matter, which was originally filed by way of revision petition to the Government of India Under Section 131 of the Customs Act (as then applicable), has since been received by transfer to the Tribunal and is to be disposed of as an appeal.
2. The appellant in this case is, M/s. Afro Asian Associates, Bombay, who have put in appearance through Shri T.V. Krishnamurthy, Consultant and the appeal is directed against an order, rejecting their claim for refund of amount which they contend to have been charged in excess of that leviable on the goods imported by them consisting of glass chatons. The facts, set out in the grounds of appeal reveal, that the appellant Company imported two consignments of Glass Chatons, which were subjected to assessment under Heading No. 70.01/05 of the Customs Tariff and charged with duty at 100%+20% and additional (CV) duty of 30%. The appellants now contend that these Glass Chatons are items of embellishments used in leather foot wear and as such entitled to concessional rate of duty by virtue of exemption notification being No. 29-Cus., dated 10-2-79. They plead to have paid the full custom duty as well as the additional duty and the C.V. duty in ignorance of existence of said notification, the existence whereof came to their notice, according to them, only when some other importers on going in appeal, were held eligible to the benefit of the notification under reference. The appellant further plead that they came to know of the order under reference sometime in the middle of 1980 and soon after filed the claim for refund which to be exact was, submitted on 7-8-80 and the Assistant Collector straightaway rejected the same by reference to the provisions of Section 27(1) of Customs Act, 1962 (hereinafter referred to as the Act), inasmuch as the duty in question having been paid on 23-8-79, the refund claim was held to be filed after the expiry of six months, which is the time limit prescribed by Section 27(1) of the Act.
3. On appeal being taken to the Appellate Collector of Customs, Bombay, the same view was expressed and appeal of the appellant dismissed by the Appellate Collector, holding that the Assistant Collector had rightly rejected the refund claim as being barred by time and there was no ground for interfering with the said order.
4. In this appeal which, as already remarked was originally by way of revision petition to the Government, the plea is again to the effect that the appellant had paid the excess duty in ignorance of the Government notification entitling them to a concess onal rate of duty and that they came to know of the same only when some other importers were held eligible to the concessional rate of duty on similar items and that the appellant filed a refund claim without any further delay and as such it was a fit case where appellant ought to be held entitled to refund of the excess duty. It is further pleaded that the position was not free from doubt, so much so that there was difference of opinion amongst number of Custom Houses about the propriety of extending the benefit of concessional assessment under Notification No. 29-Cus., dated 10-2-79 and that this issue was resolved only by an Order-in-Review, passed by the Government of India on 4-6-81 and as such the delay, if any committed in lodging the claim by the appellant be condoned.
5. The appeal has been taken up today for hearing and Shri T.V. Krishnamurthy addressed very elaborate arguments in support of the appellant's claim for refund, urging that it was a case where by virtue of the notification, referred to above, the basic customs duty in excess of 40% could not be charged and additional C.V. duty was not leviable at all and as such any amount realised over and above the same was tantamount to levy of duty without the authority of law, and as such the appellant became entitled to refund of the same, as Article 265 of the Constitution of India enjoins upon the State not to "levy or collect any duty not authorised by law".
6. Shri T.V. Krishnamurthy further developed his argument that the notification being 'Law' by virtue of Article 13 of the Constitution, any amount the appellant might have been made to pay depriving them of the benefit of the statutory notification was a collection of duty without the authority of law and that in any case, it was a duty paid in ignorance of existence of the aforesaid notification and the excess amount is thus an amount which can be said both to be levied as well as paid by mutual mistake and thus becomes refundable by attracting provisions of Section 72 of the Indian Contract Act and the General law of limitation, which gives a period of three years to claim refund from the date the mistake becomes known.
7. Learned Consultant for the appellant built up his arguments very strenuously by making reference to numerious decisions covering various High Courts, as also the Supreme Court to draw support for his contention that in such situation the period of limitation, as envisaged by Section 27(1) of the Customs Act will not be applicable, which according to him is confined to cases for payment of duty legally assessable and payable and that for cases where the levy itself was not permitted by law, it is a case of ecovery of duty without the authority of law or that of recovery owing to mutual mistake and that such eventualities are covered by general law of limitation.
8. The aforesaid arguments were controverted by the Ld. Departmental Representative by contending that the authorities functioning under the Customs Act were bound by the provisions thereof and the claim for refund having been made with reference to the provisions of Customs Act, it was not open to the appellant to urge that the period of limitation prescribed by Section 27 of the Act would not come into play, and that it was a case where the lower authorities have acted within the confines of law applicable on the subject.
9. We have given our very careful thought to the matter, because of the issues involved, and have given our earnest consideration to all the points urged by the Ld. Consultant for the appellant. We have also gone through the large number of authorities cited by Ld. Consultant, but we find that none of them seem to fortify the stand taken up by the appellant.
10. It is pertinent to note that the claim for refund was made by the appellant in this case before the Assistant Collector of Customs and on rejection of the same, they went in appeal to the Appellate Collector which is machinery provided by Customs Act. It is thus manifest that the claim for refund was made by the appellant Company with reference to the provisions, of, and by resorting to the machinery provided by the Customs Act. As such, it does not seem to lie in their mouth to say that their claim for refund ought not to be disposed of by reference to the time limit set by Section 27(1) of the Customs Act, but by applying general law of limitation.
11. It is a settled proposition of law that once a party places reliance upon a Statutory right and makes a claim with reference to a particular Statute, then it is not open to that party to urge that the restrictions imposed by such statute on the exercise of that right as to the entertainability of the claim, are to be ignored. This proposition was pointed in very unequivocal terms by their Lordships of the Supreme Court, in a case reported as M/s. Burmah Construction Co. v. State of Orissa ; AIR 1962 SC 1320. This case finds reference in the authority of the Calcutta High Court relied upon by the Ld. Departmental Representative, namely, Inchek-Tyre Ltd. v. Asstt. Collector of Customs and Ors., cited as 1979 Cencus 360D.=1978 E.L.T. (J 643).
12. In the case before the Supreme Court which relates to the interpretation of the provisions of Orissa Sales Tax Act, and Section 14 thereof, which lays down identical restrictions of time limit, to the claim for refund, and although it was conceded that the amount of Sales-tax which had been collected from the appellant therein was not leviable and could be thus described as tax "improperly or illegally collected", but it was held that once the party had come up for enforcement of the liability of the Government by reference to Sales-tax Act, the right could only be allowed subject to the restrictions which have been imposed by the provisions thereof. This was inspite of the fact, that the party had invoiced Writ jurisdiction of the High Court, but even then their Lordships of the Supreme Court upheld the view expressed by the High Court to the effect that the right could not be recognised without taking into account the restrictions imposed by the legislature, so far as that particular piece of legislation by reference to which a party laid a claim was concerned. It was thus held that although the party could enforce the right of recovery by recourse to 'other appropriate proceedings' but so long as the claim was by reference to provisions of the particular Statute, then the time limit imposed by the said Statute could not be overlooked or bypassed.
13. It was with reference to this Supreme Court authority that the Calcutta High Court in the Incheck-Tyre Ltd., case felt compelled to decline the prayer of the appellant therein, for issue of writ, in the nature of certiorari against the Customs authorities to order refund, which claim had been rejected by the said Authorities because of the time bar provided by Section 27 of the Customs Act, and, this was also a case where the excess amount was pleaded to have been paid in ignorance of existence of a notification.
14. Same principle of law was highlighted by the Supreme Court in AIR 1975 SC 1039 in a case entitled Commissioner of Sales Tax, U.P. versus M/s. Parson Tools and Plants, Kanpur, that "Where the legislature clearly declares its intent in the scheme and language of the statute it is the duty of the Court to give effect to the same without engrafting, adding or implying anything which is not congenial or consistent with such expressed intent of the law-giver ; more so if the statute is a taxing statute".
15. It was further observed in this authority that if the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus missus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserve's of the Legislature. This authority also stressed that the Appellate authority, as appointed under the provisions of U.P. Sales Tax Act, was not 'Court' and that provisions of Section 14(2) of the Limitation Act could not be invoked in proceedings before such an appellate authority or Tribunal.
16. This authority is thus a complete answer to the submissions made by the Ld. Consultant on behalf of the appellant, by reference to some authorities, urging that in view of those authorities providing relief to the concerned parties ordering refund of the amounts claimed inspite of concerned authorities under particular Act having declined to give relief by way of refund on application made to them, by reference to the time limits imposed by the particular statute, because it is abundantly clear from the observations reproduced above, that unless the particular Act under consideration makes provision for any type of condonation or extension of time on cause being shown or otherwise, it is not open particularly to a Tribunal, functioning within the confines of the same Act, to induct provisions of general law of limitation into the statute and relax the time provided therein.
17. All the authorities, cited by the Ld. Consultant recognise, and even tacitly approve the principle that so far as statutory authorities are concerned, they were justified in refusing to entertain and admit the claim for refund, if made beyond the time limit prescribed by the Customs Act or the Central Excise Act or rules framed thereunder, as the case may be. On going through the large number of authorities cited by the Ld. Consultant, we find that none of them lend sustenance to the contention raised by him that the Authorities acting under a particular Act, could be held not bound by the provisions, as to time limit prescribed by the said Act or that an Appellate Tribunal like the present one, which is also a creature of the same Statute, could give such directions to the lower authorities, impelling them to ignore the provisions of the Act and give relief to the parties by referring to general rights or general provisions under the Limitation Act.
18. The fact that it could not be done, has been on the other hand conceded by almost all the authorities referred to by him. For instance, the case reported as Patel India (Pvt.) Ltd. v. Union of India, AIR 1973 SC 1300 made a specific distinction that where the claim was covered by the provisions of Section 40 of the Sea Customs Act, 1878 (as then prevailing) claim for refund of the excess duty was to be governed by the restrictions of time limit imposed therein. Since it was held, on the facts of that case, that the excess duty paid therein was not contended, be through any of the three reasons set out in Section 40 of the said Act, but on different contentions, then the time limit provided for the plain refund, provided by the Act, would not come into play and while exercising Writ jurisdiction (emphasis ours), it was held that the relief could not be refused.
19. Similarly, in M/s. D. Cawasji &, Company etc. vs, Assistant Collector of Customs Mysore, AIR 1975 SC 813 to which the Ld. Consultant made repeated reference, it was rather held that when the claim for refund was made after a considerable lapse of time, the High Court was justified in dismissing the writ petition filed for the purpose of obtaining the refund in directing a party to resort to remedy of suit. This case is, therefore, no authority in support of contention of the appellant, that claim for refund even though made after the statutory period of time limit, provided by a particular Act, could be allowed, ignoring the said statutory period of limitation.
20 The same proposition ; namely, that such statutory authorities were always within their rights is not admitting claims filed beyond time, has been recognised in other authorities also, wherein the refunds were ordered to be made by the High Courts in exercise of writ jurisdiction by invoking the principles envisaged by Section 72 of the Contract Act or in suits filed under the provisions of Section 72 of the Indian Contract Act itself. For instance, it has been held in the case of Premraj and Ganpatraj & Company (P) Ltd. v. Assistant Collector of Customs and Ors., 1977 E.L.T. (J 166). that "In so far as orders of the respondents are concerned, no fault can be found therewith, inasmuch as the application for refund made by the company was actually time-barred, having been presented, as already stated beyond six months of payment of duty so that the Customs authorities are bound to reject it in pursuance to Section 27 of the Customs Act."
21. To the same effect were observations in the case of Wazir Sultan Tobacco Company (Delhi High Court) reported in 1981 E.L.T. 140 wherein it was observed that "It may be that the Excise authorities because of Rules 11 and 173 J would not be able to entertain an application for refund but this could not prevent the petitioner from approaching the Court for appropriate direction under Article 226."
22. It is thus manifest that the relief which was provided to the party was in exercise of the prerogative of writ jurisdiction of the Hon'ble High Court under Article 226 but the proposition was confirmed that so far as authorities acting under the Act were concerned, they could not be held as wrong in rejecting the claim with reference to the time bar.
23. To the same effect are observations of a Division Bench of Madras High Court in a case reported as M/s. Madras Aluminium Company Ltd. and Ors. v. Union of India, 1980 Cencus (Part II) 50D, wherein it was held that "In view of the provisions providing for a limit of time for making claims of refund, the authorities functioning under the Act may not be entitled to direct refund."
24. These authorities all subscribe to the view that a time limit provided by a particular Act, cannot be ignored and no refund claim admitted after expiry thereof, by authorities acting under the same Act. This proposition has been very clearly enunciated by the Supreme Court in a case reported as AIR 1975 SC 1039 as already discussed above.
25. This proposition of law that the Customs authorities were right in rejecting the claim for refund when made before them by reference to Section 27 of the Act was, unequivocally confirmed by the Supreme Court in a case reported as M/s. Madras Rubber Factory Ltd. versus Union of India and Ors., AIR 1976 SC 638. In this case, it was clearly held that unless the case could be brought within the four corners of the situation contemplated by Section 27 itself; namely, that the duty had been paid under protest or provisionally or right of refund accrued by virtue of some decision in appeal or revision in the same case, the party coming beyond the period of six months, as prescribed by Section 27(1) (b) of the Customs Act was liable to have its claim rejected, as being beyond time.
26. We also do not feel persuaded in accepting the plea of the Ld. Consultant on, behalf of the appellant that the position should be treated differently because here was a case where duty had been realised, which could not be levied and as much upholding the stand of the customs authorities that the refund claim was not entertainable being barred by time was, tantamount to allow the State to retain the money not legally recoverable. Ld. Consultant did make reference to some cases in this regard, the most notable being that of Madras Port Trust v. Hymanshu International, 1979 E.L.T. J 396 and that of Hindustan Sugar Mills v. The State of Rajasthan and Ors., A.I.R. 1981 SC 1681 where their Lordships of the Supreme Court were pleased to censure the conduct of the Government in resisting the claims made by the parties by way of civil suits by raising technical plea of limitation of time and in observing that it did not behove the Government to defeat just claims of citizens by coming up with technical pleas.
27. These observations, we may say with utmost respect do not seem to be applicable to the situations, such as exist in the present appeal and similar set of appeals, because firstly, the successive authorities, as already discussed, have held that the time limit prescribed by a particular statute, under which the concerned authorities are acting does bind every body including the parties concerned, and secondly ; we are aware of some of the authorities of different High Courts, where this principle of unjust enrichment has been held applicable both ways. Some of the prominent authorities on the subject are ;
(i) Ogle Glass Works Ltd. v. Union of India and Ors. ; 1979 E.L.T. (J 468)
(ii) M/s. Madras Aluminium Company Ltd. and Ors. v. Union of India; 1980 Cencus (Part II) 50-D;
where even while exercising writ jurisdiction, the High Courts of Bombay and Madras respectively declined to give relief to the respective petitioners before them on the ground that in the case of indirect taxes, such as Central Excise etc., the party having recouped themselves by passing on the burden of the tax, to the consumer or other dealers could not be allowed to get back the money from the Government, which was not practicable or feasible for the consumers or such other dealers to get back. Similar proposition was earlier recognised by the Supreme Court in a case reported in AIR 1970 SC 898, cited as Tilokchand Motichand and Ors. v. Commissioner of Sales Tax, Bombay and Anr., wherein it was pointed out that the question of giving relief by way of writ Jurisdiction was one of discretion for the courts to be followed from case to case and it was not necessary to give total time to litigant to move the Supreme Court under Article 32.
28. We also find that period of six months has been very categorically provided by the Customs Act for both the sides, namely; for claim of refund as well as in case of short levy to be recovered by similar type of embargo on the Government and except under exceptional circumstances, such as fraud etc., by the party the customs authorities are also the Government because Section 78 also prevented from making demand of short levy after the period of six months.
29. We are thus of the firm view that any claim filed before the customs authorities for refund of the excess duty has to be treated as Under Section 27 of the Customs Act, because there is no other provision providing for application for refund before the customs authorities, and the parties filing such refund claim are to be regulated and restricted to the time limit provided therein, and customs authorities would be right in rejecting the claims filed after the expiry of the period contemplated therein and parties are debarred from urging general principles of law of limitation in proceedings before the customs authorities.
30. Our further reason why we do not feel impressed with the argument of the Ld Consultant for the appellant that his application was not to be treated Under Section 27 of the Act because it appears from record that the application was filed in the prescribed performa which has apparently reference to Section 27 of the Customs Act because there is no other provision whereunder claim for refund could be filed before the authorities prescribed by the Customs Act.
31. This Tribunal while examining orders passed by such customs authorities, acting under the Act, has to examine their propriety and legality solely with reference to the provisions of the Act itself, and we find that the Customs Act does nowhere contemplate that any cause could be set up by party before the customs authorities as justification for the delay, and it being the established proposition that the general law of limitation cannot be invoked before quasi-judicial authorities, which proposition has been laid down by the Supreme Court, in the case earlier referred to, namely ; AIR 1975SC 1039 and also subsequently in another case, reported as AIR 1978 SC 209.
32. On a resume of the foregoing discussion making reference to number to authorities wherein the principle that statutory authorities are bound by the time limit provided by the Statute, was approved and confirmed, we do not find ground to interfere in the present appeal. The same is accordingly dismissed.
33. This order would also dipose of another appeal No. CB/SB/T/A. No. 176/81-D, M/s. Sun Export Corporation 41/42, Atlanta 205, Nariman Point, Bombay also argued today by Shri T.V. Krishnamurthy on identical contentions and the same is also hereby dismissed.