1. Appeal under Section 129 of the Customs Act, 1962 praying that in the circumstances stated therein the Tribunal will be pleased to order refund of excess customs duty paid on the import of 2 Nos. axial self-aligning roller bearing.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri U.N.R. Rao, Advocate for the appellants and upon hearing the arguments of Shri S.K. Choudhury, Senior Departmental Representative for the respondent, the Tribunal makes the following : 3. Aggrieved by the Order No. C.3/1487/1976 dated 7-6-76 of the Appellate Collector of Customs, Madras, upholding the order No. S.25/670/76 dated 27-2-76 of the Assistant Collector of Customs, Madras, rejecting his claim for refund of excess customs duty paid as barred under Section 27 of the Customs Act, 1962, the appellant filed this petition as a revision application before the Government of India on 22-10-80. By virtue of Section 131-B of the Customs Act, 1962, this petition has been transferred to the Tribunal to be heard as an appeal.
4 The appellant has claimed refund of duty on the import of goods covered by Bill of Entry No. D 385 dated 5-8-75 on the ground that 2 Nos. axial self-aligning roller bearing were not received by him and in fact they were received by him by a subsequent shipment free of cost under Bill of Entry No. D1501 dated 27-10-75. It is admitted by the appellant that the claim for refund in respect of the short-shipped consignment has not been preferred within the period prescribed in the statute under Section 27(1)(b) of the Customs Act, 1962. The claim of the appellant has been rejected by the Assistant Collector of Customs as well as by the Appellate Collector of Customs on the ground of limitation as per Section 27(1)(b) of the Customs Act, 1962. The appellant has prayed for the condonation of the delay and refund of the excess customs duty of Rs. 12,913.20.
5. The learned counsel for the appellant, Shri U.N.R. Rao, contended that under Section 5 of the Limitation Act, this Tribunal has got jurisdiction to condone the delay and pressed his claim for condonation of delay in preferring an application for refund. Though no specific petition supported by an affidavit explaining the reasons for the delay in preferring the refund claim has been filed by the appellant, in view of the fact, whether such a plea at all is open to the appellant in the light of the authoritative pronouncements of the Supreme Court and other High Courts regarding the question of limitation, We heard the appellant on the question of applicability of Section 5 of the Limitation Act. The learned counsel for the appellant contended that Section 5 of the Limitation Act was applicable to even statutory tribunals and relied on the judgment of the Supreme Court reported in AIR 1982 Supreme Court, p. 119. Apart from that, the learned counsel cited a Division Bench ruling of the Madras High Court reported in (1982) II M.L.J., p. 406, and contended that in the light of the ratio of this Bench decision, this Tribunal should be deemed to be a court within the meaning of Section 29 of the Limitation Act for the applicability of Section 5 of that Act.
6. The Departmental Representative contended that the Customs Act, 1962 is a self-contained enactment and Section 27(1)(b) of the Customs Act, 1962 prescribes a period of limitation for claiming refund under that Act. Since the Customs Act has prescribed a special period of limitation for claiming refund, the delay in claiming refund cannot be condoned by invoking the provisions of the Limitation Act. The Departmental Representative further submitted that a statutory tribunal created by an enactment should function only within the four corners of the statute and has no jurisdiction to entertain an application under Section 5 of the Limitation Act and condone the delay in the teeth of the statutory embargo under Section 27(1)(b) of the Customs Act, 1962.
He also cited various rulings of the Supreme Court and other Courts to substantiate his submissions.
7. The question for consideration before us in this appeal is whether the delay in preferring the refund claim can be condoned by invoking Section 5 of the Limitation Act. The position is no longer res integra and is covered by the rulings of the Supreme Court and the High Courts.
The judgment in AIR 1982, Supreme Court, p. 119, relied upon by the appellant has no bearing on the issue arising for consideration before us. In that case, the Supreme Court held that under the Uttar Pradesh Act 24 of 1953, the Divisional Commissioner was made an 'appellate court' and was not functioning as a persona designata and therefore Section 5 of the Limitation Act applied to appeals before the Divisional Commissioner who was held to have powers to condone the delay. .Likewise, the ruling of the Division Bench of the Madras High Court reported in (1982) II M.L.J., p. 406 has, in our opinion, no bearing on the question arising for consideration in this appeal. The Division Bench ruling of the Madras High Court in (1982) II M.L.J. 406, dealing with a case under the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960) (as amended by XXIII of 1973) held that the appellate authority under the Rent Control Act was a 'court' within the meaning of Section 5 of the Limitation Act. This Division Bench ruling of the Madras High Court is clearly distinguishable and has no bearing on the present case because the Division Bench held that the appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act was a court in view of certain peculiar functions discharged by it under the Act. As a matter of fact, their Lordships have clearly emphasised the fact that every order passed on appeal by an appellate authority under the said Act shall be executed by the Controller as if such order is an order of a civil court and for this purpose, "the Controller shall have all the powers of a civil court".
Apart from it, their Lordships have also held that the forum of rent control litigation has been correctly shifted from the revenue officials to the courts though the Rent Controller and the appellate authority are not described as courts in the Act. Judicial officers such as the District Munsiffs and the Subordinate Judges have been dealing with petitions and appeals respectively under the Tamil Nadu Rent Control Act. Therefore, having regard to the peculiar provisions of the Rent Control Act and the judicial officers functioning as original and appellate authorities under the same, the Division Bench of the Madras High Court held the appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act as a court. The ratio of this decision cannot be applied and extended to a statutory tribunal which cannot be equated to a civil court.
8. In repelling the contentions of the appellant, the Departmental Representative relied upon a ruling of the Supreme Court reported in AIR 1966 Supreme Court, 1738, a ruling rendered by a Constitution Bench of the Supreme Court. The Supreme Court in that case was concerned with a matter arising under the Kerala Sales Tax Act and considered the question as to whether a civil court will have jurisdiction to entertain a suit in respect of a tax wrongly or illegally collected by the sales tax authorities. The Supreme Court adopting the ratio in the earlier ruling of the Constitution Bench of the Supreme Court reported in AIR 1965 Supreme Court, 1943 (Kama/a Mills v. State of Bombay) has clearly held that the civil court has no jurisdiction to entertain a suit. Therefore, when the Supreme Court has clearly held that even a common law court will have no jurisdiction to entertain a suit in respect of a matter arising under a special enactment like that of Kerala Sales Tax Act or Bombay Sales Tax Act, a fortiori it follows that a statutory tribunal will have no jurisdiction or authority to traverse beyond the confines of the provisions of the Customs Act, 1962, much less invoke Section 5 of the Limitation Act as a 'court' to condone delay. The Departmental Representative also invited our attention to a judgment of the Supreme Court reported in AIR 1976 Supreme Court 638 (Madras Rubber Factory v. Union of India and Ors.).
This case deals with a question arising under Section 27(1) of the Customs Act, 1962 in respect of refund of duty and the Supreme Court has clearly held that applications for refund will have to be preferred within the statutory period of six months prescribed under Section 27(1) of the Customs Act, 1962 unless a case for refund is covered by the proviso to Section 27(1) or Sub-sections (2) and (3) of Section 27.
Even though the question with reference to the applicability of Section 5 of the Limitation Act was not specifically considered by the Supreme Court in that judgment, it is plain that the ratio of that ruling clearly rules out the applicability of Section 5 of the Limitation Act in matters like refund arising under Customs Act. In this connection, it is relevant to note another judgment of the Supreme Court reported in 1969 (The Supreme Court Weekly Reported, Vol. XIV, 1969, p.
446-Union of India v. A.V. Narasimhalu), wherein the Supreme Court has held that "the Legislature having provided a complete machinery for obtaining relief against the levy to duty by the Customs authority, jurisdiction of the civil court must be deemed excluded". The jurisdiction of the civil court to entertain a suit on the ground that duty was improperly or illegally levied is excluded. Therefore, as observed by their Lordships of the Supreme Court, "where a statute creates a new right or liability and provides a complete machinery for obtaining redress against erroneous exercise of authority, jurisdiction of the civil court to grant relief is barred. Liability to pay a duty of customs is not a common law liability. It arises by virtue of the Sea Customs Act; in respect of any grievance arising in consequence of enforcement of that liability, machinery has been provided by the Act.
Having regard to the complicated nature of the questions which arise in the determination of liability to pay duty of customs, the Legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals.
An appeal lies against the order of the Assistant Collector of Customs against an order imposing duty as well as an order refusing to refund duty, and the grievance may be carried to the Board of Revenue. In our judgment, the jurisdiction of the civil court itself is completely excluded, the question of entertaining a time barred application for refund is obviously beyond the jurisdiction of the statutory authorities and the hierarchy of tribunals functioning under the Customs Act.
9. The Departmental Representative also drew our attention to the judgment of the Calcutta High Court reported in 1979 E.L.T. J 236 (Inchek Tyre Ltd. v. Assistant Collector of Customs and Ors.) wherein it is held as follows : "If an authority has illegally collected an amount the aggrieved person is entitled to the refund of the same. This Court cannot issue a writ in connection thereto. However, if such refund is conferred by the statute and if there is any condition imposed to the exercise of that right, that would be binding on that person concerned and he cannot claim his right to refund without such condition. Any such provision in any statute is legal and valid." 10. The Departmental Representative further invited our attention to a ruling reported in 1982 E.L.T. 950 (Cal.) (Acharya Brothers v. Union of India) wherein the Calcutta High Court has clearly held that the Customs Act is a complete code and provides for assessment, collection procedure and also remedies and when specific procedures for claiming refund of duty or money paid have been made in the Act itself, one must follow the procedure as laid down therein.
11. A Special Bench of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, has also taken the view in the case of Afro-Asian Associates, Bombay, and Sun Export Corporation, Bombay v. Collector of Customs, Bombay (reported in 1983 E.L.T. 372 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 to the court and particularly to a tribunal within the confines of the same Act to induct provisions of general law of limitation into the statute and relax the time limit provided therein." 12. In the light of the ratio laid down in the various rulings cited supra, we have no hesitation to hold that a claim of refund barred Section 27(1) of the Customs Act, 1962 will have to be dismissed in limini and a time barred application cannot be entertained by condoning the delay under Section 5 of the Limitation Act under any circumstances. The appeal is therefore dismissed.