Customs, Excise and Gold Tribunal - Tamil Nadu
Vishakhapatnam Port Trust vs Collector Of Customs on 22 September, 1989
Equivalent citations: 1990ECR653(TRI.-CHENNAI), 1990(48)ELT43(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. This appeal is directed against the order of the Collector of Customs & Central Excise (Appeals), Madras, dated 14-3-1988 confirming the order of the Assistant Collector of Customs, Appraising Department, Customs House, Vizag, and rejecting the appellant's claim for refund on grounds of limitation under Section 27 of the Customs Act, 1962, the 'Act' for short.
2. The appellant imported a floating boom from West Germany and paid Customs duty on 28-5-1986 and preferred a refund claim in respect of the excess payment of duty in the office of the Assistant Collector of Customs, Customs House, Vizag, on 1-12-1986 after the expiry of the period of limitation of 6 months envisaged by Section 27 of the Act. The refund claim of the appellant was rejected by the original authority and the same was also confirmed in appeal by the lower appellate authority under the impugned order out of which the present appeal arises.
3. Shri L.S. Rao, the Deputy Chief Engineer, and Shri Sharma, Assistant Law Officer of the appellant Port Trust, appearing on behalf of the appellant, submitted that the appellant is a Government organisation under the control of Ministry of Shipping and Transport and so the period of limitation for claiming refund of duty will be one year in terms of Section 27(l)(a) of the Act. It was further urged that the procedural delays should not stand in the way of doing substantial justice by grant of refund when the excess collection of duty is not in controversy. It was further urged that "when the Customs authorities have taken 5 months time to intimate the refund the claimants should be given equal opportunity under law of equity". The appellants also gave written submissions wherein it is pleaded that on the basis of the ratio of the case in Assistant Collector of Customs, Madras and Ors. v. Premraj & Ganapatraj & Co. Pvt. Ltd., reported in 1978 (2) E.L.T. 630, recovery of tax without the authority of law would offend Article 265 of the Constitution of India and the amount so collected is liable to be refunded by the authorities. Reference is also made in the written submissions to the ruling of the Supreme Court in Patel India Pvt. Ltd. v. Union of India and Ors. reported in AIR 1973 SC page 1300.
4. Heard Shri Bhatia, the learned Senior D.R.
5. The short question that arises for our consideration in the present appeal is whether the refund claim of the appellant is barred by limitation under Section 27 of the Act or not. The admitted fact remains that in respect of the duty paid on 28-5-1986 a refund claim was made before the proper officer on 1-12-1986 well after the expiry of 6 months time limit envisaged by Section 27 of the Customs Act. The plea of the learned representative of the Port Trust that the refund claim will have to be construed in terms of Section 27(1) (a) of the Act holding Visakhapatnam Port Trust as a Government is not tenable in law. Port Trust is only a statutory body created under the Major Port Trust Act, 1963 for the administration of the port and is not Government within the meaning of Section 27(1) (a) of the Act. Statutory Corporations or statutory bodies are created by special statutes and are governed entirely by the terms and conditions of the particular statutes creating such corporations. The fact that the capital of a Corporation may be provided by the Central Government or that the working of the Corporation may be supervised or directions may be issued by the Government does not constitute the Corporation a Government within the meaning of Section 27(l)(a) of the Act. Though statutory Corporations are authorities within the meaning of Article 12 of the Constitution of India vis-a-vis their employees, the Corporations created either by a statute or under a statute cannot be called Government. Government generally connotes three estates viz. the Legislature, the Executive and the Judiciary and under Section 3(23) of General Clauses Act, 1897 "Government" or "the Government" shall include Central Government and any State Government. Under the Civil Procedure Code Government means (a) in relation to any suit by or against the Central Government or against a public officer in the service of that Government, the Central Government and (b) in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government. The Indian Penal Code defines Government as denoting the Central Government or a Government of a State. Inspite of control both of finance and functions by the State or a Government of statutory Corporations its service is generally regarded not as a civil service or a civil post under the State within the meaning of Article 311 of the Constitution of India. Therefore, the Port Trust being a statutory body cannot claim to be a Government within the meaning of Section 27(1) (a) of the Act. Therefore, the period of limitation applicable is only 6 months in terms of Section 27(1) (b) of the Act from the date of payment of duty and admittedly in the present case the refund claim was filed after the expiry of the period of 6 months from the date of payment of duty. The rulings relied upon by the appellant are not applicable in respect of the time barred refund claim before a statutory authority or for that matter before this Tribunal which is a creature of the statute and which is bound by the statutory period of limitation in the Act and cannot traverse beyond the confines of law to grant relief. This position is no longer res integra and is covered by the authoritative pronouncement of the Supreme Court in the case of Collector of Central Excise, Chandigarh v. Doaba Sugar Mills reported in 1988 (37) ELT 478 Supreme Court The Supreme Court in the said ruling has held as under :-
"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 the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within four corners of the Statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act arc bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case , when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law the party might seek recourse to such alternative remedy as it might be advised."
Therefore, in view of the authoritative pronouncement of the Supreme Court extracted above, we hold that the refund claim of the appellant is clearly barred by limitation as rightly held by the authorities below and in this view of the matter the impugned order appealed against is upheld and the appeal is dismissed.