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Documents citing Incheck Tyres Ltd. vs Assistant Collector Of Customs For ... on 9 January, 1986

National Insulated Cable Co. Of India ... vs Union Of India (Uoi) And Ors. on 26 August, 1988

It is submitted that in the Incheck Tyres Case, the writ petitioner knew from the very beginning that the duty was collected under item 28 illegally and that in respect of the two consignments against the assessment of the duty under item 28, the appellant company filed appeals and the Appellate Collector of Customs by his order allowed the said contention of the appellant company that the said consignment were classifiable under item 28(3) and therefore ordered refund of duty. It is also urged that in respect of five other consignment of the similar nature, the appellant company even after preferring the appeal against the assessment of the Customs Authorities under item 28 paid the duty under item 28 without any protest even though the appellant company was fully aware that the proper duty was payable under item 28(3) of the Indian Customs Tariff and that from the beginning the appellant was fully aware that the duty charged was not proper and did neither take any steps to make payment under protest which would have lifted the bar of limitation of six months in view of proviso to sub-section (1) of Section 27 and even the refund applications were filed beyond the period of six months after the payment of the duty and thus the claim was dismissed being barred under Section 27(1) and that the writ court in the facts and circumstances of the case did not wish to interfere with such an order. It is further urged on behalf of the writ petitioner that in this case, the facts are quite different, that writ petitioner did not make any voluntary payment of tax, that in the bills of entry, the column regarding the payment of counter-vailing duty was left blank and the Custom Authorities assessed counter-vailing duty under item 15A(2) and the petitioner paid the duty in good faith and only when the Assistant Collector of Customs, Dum Dum Air Port wrote a letter to the petitioner dated 2.2.86 in respect of the similar consignment that the duty was chargeable under item 68 and offered to refund the excess duty charged in respect of that consignment subject to making of the claim under Section 27, the writ petitioner from the first time discovered that by mistake of law the counter-vailing duty in respect of all the consignments of Kapton Polymide Film imported by the petitioner in between February 1984 and January 1986 was illegally charged under item 15A(2) and then only within two months thereafter the writ petitioner applied for refund stating all these facts and the applications were rejected on the ground that it is barred by limitation. It is however, submitted that the writ petitioner concedes that the Custom Authority who was bound by the statute could not refund the duty if it was barred by limitation but when such duty was charged for the consignments in question not under the proper item it was a case of charging duty without the authority of law and the writ petitioner has definite jurisdiction to order refund if it is found that the petitioner has moved this court promptly after the discovery of the mistake and the refund claim is not barred by Article 113 of the Limitation Act which provides for the limitation of three years to file a suit for recovery of the refund of excess duty paid for which the limitation would begin to run from the date of discovery of mistake under Section 17(1)(c) of the Limitation Act. It is also urged that the contention of Mr. Mitra that the duty recovered in this case is only an irregular recovery of duty and not recovery of duty without the authority of law has no substance.
Calcutta High Court Cites 25 - Cited by 1 - Full Document

Nipha Machinery Manufacturers Pvt. ... vs C.E.G.A.T. on 2 March, 1994

19. There is no doubt that I have to prefer the Division Bench view to the Single Judge's judgment. In the manner I venture to read the said observations of the Division Bench. I find there nothing contrary to my opinion, that the jurisdiction to order refund of the moneys held by public respondents, which were obtained without any initial authority of law to receive the same, and which are continued to be held without any subsequent authority of law to withhold the same, is not taken away by reason of the presence of particular provisions of refund, or not to refund, mentioned in different Acts like the Customs Act or the Central Excise Act. Also, as I read the said judgment, such refund might or might not be ordered by the Writ Court depending upon the particular facts and circumstances of each case.
Calcutta High Court Cites 8 - Cited by 0 - Full Document

Shalimar Group Pvt. Ltd. vs Collector Of Central Excise on 10 April, 1989

The Assistant Collector of Central Excise rejected all the three refund claims as time-barred. Appeal was filed against the order of the Assistant Collector before the Collector of Central Excise (Appeals), Calcutta The Collector (Appeals) has disposed of the appeals before him by the impugned order. Appellants contended before the Collector (Appeals) that the refund claims for the years 1977 and 1978 were time-barred under the Central Excise Laws, but since the duty was paid under mistake of law, general law of limitation should be applied and according to the provisions of the Limitation Act, the claims were not time-barred. So far as the refund claim for 1979 is concerned, the appellant's contention before the Collector (Appeals) was that the RT 12 returns for the relevant period were assessed during the period from 16.1. 1980 to 1.10.1980 and the time-limit for preferring the claim should be counted from the dates of assessment on the RT 12 returns and not from the dates of payment of duty. According to them, since the refund claim was received by the Assistant Collector on 15 7.1980, it was not barred by limitation if the time-limit is counted from the dates of assessment on the RT 12 returns. Following the judgment of the Hon'ble Supreme Court in the case of Burmah Construction Co. v. State of Orissa AIR 1962 SC 230, Calcutta High Court judgment in the case of Incheck Tyres Ltd v. Assistant Collector of Customs and Ors. 1979 ELT J-236 and this Tribunals decisions in the case of Afcro Association, Bombay v. Collector of Customs, Bombay 1983 ELT 372 : 1983 ECR 183D (Cegat) and in the case of Miles India Ltd. v. Appellate Collector of Customs, Bombay 1983 ELT 1026 : 1983 ECR 242D, the Collector (Appeals) held that the Law of Limitation was not applicable to the Central Excise cases. He has also held that the time-limit for the purpose of claiming refund should be computed from the date of payment of duty and not from the date of assessment in RT 12 return. He relied on the decision of this Tribunal (West Regional Bench, Bombay) in the case of Indian Oil Corporations.
Customs, Excise and Gold Tribunal - Calcutta Cites 21 - Cited by 0 - Full Document

Hindustan Cocoa Products Ltd. vs Collector Of Central Excise on 28 July, 1987

In Incheck Tyres Ltd.. Vs. Assistant Collector, decided on 9.1.1986 and reported in 1987 (27) ELT 614, a Division Bench of the Calcutta High Court held that undoubtedly the bar of limitation of 6 months laid down by Section 27 of the Customs Act would not apply in case the High Court in its discretion makes an order for refund under Article 226 of the Constitution. But in exercising its power under Article 226 of the Constitution the Court is always guided by well settled principles of law. When a party has chosen to avail of ordinary remedy provided under the Customs Act for obtaining refund of duty paid by them but the said claim is rejected on the ground of limitation, the Court by invoking its power under Article 226 of the Constitution may choose not to lift the said bar of limitation and order refund of the duty and ultimately refused the prayer of the petitioner of that case for issue of mandate upon the respondents to refund duty in question.
Customs, Excise and Gold Tribunal - Delhi Cites 33 - Cited by 2 - Full Document
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