1. These proceedings, which were originally by way of revision petition before the Central Government, and now being treated as an appeal having been received by transfer in pursuance to the provisions of Section 131B(2) of the Customs Act, 1962 (hereinafter referred to as the Act), raise a limited issue; namely, as to the legality of the orders of the lower Customs authorities in dismissing the refund claims of the appellants herein, as being barred by time in terms of Section 27(1) of the Act.
2. The plea as raised in the appeal is based on the contention that on import of a consignment of snap fasteners, customs duty together with auxiliary and countervailing duty as assessed, namely @ 100%+20%+8% or 25%+5%, was paid but subsequently the appellants gained knowledge of the fact that the goods could not be subjected to customs duty, in excess of 40% in view of Entry No. 12, in the Exemption Notification being Notification No. 29-Cus., dated 10-2-79 covering : "other embellishments for footwear".
3. It appears that a number of claims for refund were filed before the Assistant Collector, which were rejected by him by a consolidated order passed on 31-8-1981 on the view that the applications having been made beyond the period of six months from the payment of duty, now claimed by way of refund, and as such were barred by time in view of the time limit prescribed by Section 27 of the Act. On an appeal being carried to the Appellate Collector, he confirmed the view as held by the Assistant Collector and dismissed the appeal by order dated 5th October, 1981, holding that provisions of Section 27 of the Act being mandatory, he saw no reason to interfere with the order passed by the Lower authority.
4. The appellants assailed this order in the present appeal and per grounds stated therein, it was pleaded that the question that the goods imported by them were covered by the description : "other embellishments" as contained in Notification No. 29 of 1979, had been settled by Government of India itself, in a Revision Petition and consequently any duty levied in excess of 40% became an illegal recovery and payment thereof by the appellants was due to a mistake of law, and as such could not be treated as a duty of customs, so as to attract the provisions of Section 27, and that the lower authority erred in holding so; contention being that a period of three years was available under the general law of limitation. Placing reliance on Government of India decision reported in 1981 ECT 323 D which was passed on 4-6-1981, the appellants plead that when it became obvious that the payment made by them were mistaken and not warranted by law, they filed refund applications in respect to different consignments and that all of them were within a period of three years from the respective dates of payment, and that by declining to entertain the refund claims and considering them on merit, the Customs authorities were guilty of act of retention of amounts in excess of those recognised by law, rendering them without authority of law, and as such refunds ought to have been granted, as sought by the appellants.
5. After the appeal was listed for hearing. Dr. N. Kantawala, Advocate, who represented the appellants in this case, indicated that having acquired knowledge of the decisions of this Tribunal, upholding action of the Customs authorities in rejecting refund claims on the issue of time bar as contemplated by Section 27 of the Act, he intended to argue the matter exhaustively, and with a wider perspective, and requested for ample time to be granted to him for the purpose of arguments and thus a date for hearing was fixed keeping in view the stand made known by Dr. Kantawala.
6. On the appeal being taken up for hearing, the learned counsel made it clear at the outset that in view of decisions of the Tribunal in a series of cases, he did not propose to touch upon the same issues over again though he may not be taken to have conceded the point but he wanted to approach the matter from a different angle, not so far projected. He canvassed his arguments by formulating three propositions to the effect that:-firtly, a look at Section 27 of the Act itself; particularly in view of Sub-section (3) thereof, made it manifest that "any person" could claim refund of duty that becomes due to him as a result of an order passed in appeal or revision by a competent authority; secondly, this Tribunal was a court for all purposes and as such the general law of limitation had also to be taken into consideration and that it was not correct to say that the Tribunal could not go beyond the confines of the Customs Act in this regard; and thirdly, due regard should be given to the law laid down by the Supreme Court on similar legislation.
7. Dr. Kantawala elaborated his contentions by first pin-pointing the provisions of Sub-section (3) of Section 27 of the Act which read as under :- "(3) Where, as the result of any order passed in appeal or revision under this Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person, without his having to make any claim in that behalf." He laid stress on the point that 'any person' as finding reference in this sub-section would cover all those persons who were similarly placed as the one whose matter had been decided favourable to the assessees in any appeal or revision under this Act, enabling him to make a claim for refund and that it become incumbent upon the proper officer to entertain such claims for refund and allow the same. The learned counsel emphatically argued that this provision was independent of Sub-section (1) and could not be circumscribed by the limitation laid down by the said provision. Although he did not have any comments to offer in respect to the Bench observation that the term 'any person' as occurring in Sub-section (3) is relatable to the person who was a party to the appeal or revision in question which intention seems to be clear from the use of the term "such person" immediately thereafter but insisted that 'any person' would mean all those who become entitled to avail of the fruits of a decision in an appeal or revision; that being in this case an order passed by the revisionary authority and that the appellants were not guilty of any laxity inasmuch as the refund claim had been lodged as soon as the said decision became known to them.
8. The learned counsel placed reliance on the elaboration of the term 'any person' as given in Law Lexicon and Legal Maxims published by Delhi Law House (2nd Edition) at page 169 and cited an authority of Patna High Court (AIR 1967 Patna 49) in case of Commissioner of Income-tax v. Joharmal Parsuram.
9. During the course of his arguments, he again stated that he also felt than when a person is applying under Section 27(1) of the Act, then he may be bound to apply within six months as laid down by the said provisions, adding that he did not want to concede formally. His argument was that application for refund of amount which were not lagally due were de-horse of the provisions of Customs Act and have to be treated on a separate footing and that he drew support for his contention from the dissenting judgement recorded in the case decided by Special Bench 'C' for the Tribunal reported as Laboratories Vifor (India) Pvt. Ltd., Bombay v. Collector of Customs Bombay, [1983(2) ETR 291].
10. He further built up his arguments that the Tribunal as constituted has to be treated as a purely judicial body inasmuch as it was not entrusted with any executive or administrative functions and is thus to be treated as a 'court' for all purposes and that while disposing of matters before it, it could not be restricted to the provisions of the Customs Act and that all other Central legislations would apply and that keeping in view the well-recognised principle that period of limitation under any particular statute does not extinguish the right and that the entitlement to get refund being there, the party ought not to be shut out, merely on the basis of the provisions of Section 27(1) of the Act and that in this case period of three years was available from the time the judgment of the revisionary authority came to light and this was a case where the right is deemed to have been created by the said judgment and that article 178 of the Limitation Act would cover all cases of erroneous payments and an assessee could not be thrown out merely on the basis of the provisions of Section 27(1). He further placed reliance on a decision of the Orissa High Court reported as 1983 ECR 222D in case Straw Products Ltd. v. Factory Officer, Central Excise, Straw Products Limited, and Ors..
11. He lastly urged that decisions given by Supreme Court in matters pertaining to identical legislation had to be given all regard, and cited, in this regard, a case reported as AIR 1977 SC 282 (The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma) and that of Madras Port Trust v. Hymanshu International (AIR 1979 SC 1144) and reiterated that there can be cases of refund other than those contemplated by Section 27(1), and that such matters should be governed by either Article 178 of the Limitation Act or Article 137. He also relied on a decision of Orissa High Court reported as AIR 1962 Orissa 100, and that of Bombay High Court in the case of Associated Bearings reported as 1980 ELT 415 and summed up his arguments by reiterating that party's just claims ought not be defeated on technical points of limitation.
12. Shri K. Chandramouli, SDR, contended in reply that Customs Act was a special legislation and provisions thereof had to be given precedence over general law, and that the Tribunal itself being a creature of the Act, its jurisdiction was circumscribed. He controverted the position as taken up by the learned counsel to the effect that Tribunal was a court, and that all general laws would apply; making particular reference to provisions of Sub-sections (7) and (8) of Section 129-C of the Act, whereunder only specified provisions of the Code of Civil Procedure and Criminal Procedure Code have been made applicable by specific mention, indicating that application of all other general laws was excluded.
13. Learned SDR further pointed out that applications in this case had been made in Form A with reference to Section 27 of the Act and that when the remedy provided by the Act was resorted to, the party could not get out of the conditions imposed thereby. He further refuted the argument about the Tribunal being a court, by citing an authority of Karnataka High Court reported as AIR 1983 Karnataka page 164 and argued that based on the ratio of this decision, the Tribunal could not be construed as a court in general sense of the term.
14. He also contested the position taken up by Dr. Kantawala that "any person" would be in a position to take advantage of a judgment passed in appeal or revision, contending that the term used within the contemplation of Sub-section (3) had relation only to the effected person; namely, a person who had gone in appeal or revision, and that a person who had not himself questioned the decision of the lower authority by approaching the higher authority by way of appeal or revision, could not take advantage of orders passed on matters taken up by some other party and that the embargo created by subsection (4) of Section 27 was unequivocal and in view of this provision, a person could not get out of Section 27 for the purpose of claiming refund and would thus be bound by the limitation provided therein. He also laid stress on principles of harmonious construction of provisions of a statute, citing AIR 1967 SC 1211, in support of his plea.
15. Dr. Kantawala made a short rejoinder claimed by again laying emphasis on the fact that the refund claimed by the appellants was of a different category than contemplated by Sub-section (1) of Section 27 and that since there was no provision in the Customs Act providing for recovery of payments made under mistake of law; general law of limitation shall override the special law and that in any case the provision could be supplemented by the Law of Limitation and made reference to a matter decided by Bench 'C' of the Tribunal in case pertaining to Sandoz (India) Ltd; Bombay v. Collector of Customs, Bombay being Order No. 536/1983-C in Appeal No. CD(SB)(T) 1233/80-C. He concluded his arguments by requesting that the matter was of great importance and not free from doubt and as such a fit case for making reference to a larger Bench.
16. We have given very careful thought to the issues raised by learned counsel of the appellants in view of the new stance lent by him to the controversy. Although he very fairly did not raise the same arguments as have been covered and met with by Benches of the Tribunal in earlier decisions, nevertheless put forward exhaustive arguments which have engaged our utmost attention.
17. Though the learned Counsel has not re-agitated the points earlier settled, though not conceding, but we would like to recapitulate the issues settled by us, almost covering multifold aspects as argued before us. An exhaustive and elaborate summing up has been done by this Bench in the case Miles India Ltd., Baroda v. Appellate Collector of Customs, Bombay [1983 E.L.T. 1026 (CEGAT)]. We came to the conclusion after considering all the authorities cited by the Counsel therein that taking note of the fact, this claim for refund was made by the appellants in that case (which is the position here also), before the Assistant Collector of Customs and on rejection of the same, they went in appeal to the Appellate Collector, which is the machinery provided by the Customs Act, and the application was in Form A as prescribed by the Customs authorities footnote whereof has specific reference to Section 27; it was manifest that the claim for refund was made by the appellants with reference to the provisions of, and by resorting to the machinery provided by the Customs Act, and that as such it did not lay in their mouth to say that claim for refund ought not to be disposed of by reference to the limitation imposed by Section 27(1) but by applying general law of limitation.
18. We have considered every aspect in the above quoted case, including the question as to whether in the situations, such as prevailing in the present case; namely, refund application having been actuated following a decision by a revisionary authority, a case could be considered in the interest of justice and isquity for condonation of delay or extensidn of time but found ourselves handicapped in face of absence of any such provisions in the Act, and thus any exercise of such a discretion had to be ruled out, holding that: "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 the Customs Act does nowhere contemplate that any cause could be set up by the party before the customs authorities in justification for the delay, and it is the established proposition that general law of limitation could not be invoked before quasi-judicial authorities which proposition has been laid down by the Supreme Court in cases reported as (1) AIR 1975 SC 1039 and (2) AIR 1978 SC It was also observed in the said authority that period of six months had been very categorically provided by the Customs Act for both the sides; namely for claim for refund as well as short levy to be recovered by the Government because Section 28 also places a similar type of embargo on the Government and except in such exceptional circumstances, such as fraud by the party, the Customs authorities have also been debarred from recovery of short levy from a party after a period of six months.
19. In view of the elaborate consideration by us of all points raised on behalf of the claimants for refund in the earlier judgments cited above, and in view of our other decision holding that in matters, involving limitation, the period provided by different provisions of this act for different purposes has an overriding and binding effect qua the authorities acting under this Act; one of them being in the appellants' own case reported as Jalaram Trading Co. v. Collector of Customs, 1983 ECR 713-D (CEGAT) and another being : Canara Workshop Ltd., Mangalore v. Collector of Customs, Madras, [1983 E.L.T. 1099 (CEGAT)] we do not feel compelled to go into further details on this issue.
20. We also observe that even in the case repeatedly referred to by the learned Counsel, during arguments in this appeal; namely, Sandoz (India) Ltd., Bombay v. Collector of Customs, Bombay, decided by Bench 'C' of the Tribunal being Order No. 536/1983-C dated 11-11-1983, the earlier view taken by different Benches of the Tribunal has been reiterated and confirmed, to the effect that there was no question of invoking the provisions of the Limitation Act to an application under Section 27 of the Customs Act, disregarding the limitation prescribed in Section 27 itself. We do not, thus, see even any patent or even latent observation in this ruling which could lend a support to the appellants in this case.
21. The other cases pointedly referred to by the learned counsel have also been exhaustively dealt with, in our earlier judgments. For instance, the case most highlighted; namely, that of Orissa High Court in case of Straw Products Ltd. (Supra) has already been noted and distinguished in the case of Laboratories Vifor (Supra), where it has been observed that with all respect to the judgment of Orissa High Court, it proceeds in a general way, without specific reference to any Supreme Court authority, and had remitted the matter for a fresh decision by the statutory authority itself, and could not thus by itself be considered to be an authority in support of the proposition now canvassed; namely, that provisions of general law of limitation would also be attracted to application for refund, made under the Customs Act; particularly when there was an express Supreme Court authority holding to the contrary; namely, that in the case of Madras Rubber Factory v. Union of India (AIR 22. The earlier case of Miles India Ltd. (supra) has also pin-pointed that there were observations, even in the judgment of Bombay High Court, reported as : Associated Bearings Co. Ltd. v. Union of India and Anr. (1980 E.L.T. 415), which justified the stand taken by Excise authorities in applying the period of limitation as specified in Rule 11; the only distinction made being that this could not prevent the party from approaching a High Court for appropriate directions under Article 226. We, therefore, do not see any strength being lent to the appellants case, from a reference to this authority, which the learned Counsel did during the course of the arguments.
23. The only points remaining to be considered, which were not earlier raised, are as to whether the provisions of Sub-section (3) of Section 27 could be pressed into aid by the appellants on the basis of an order of the Revision-ary Authority on a revision filed by some other party.
Here again, we are constrained to say that the contention put forward by the learned counsel for appellants completely fails to commend to reason because apart from the fact, that a reading of the relevant provision itself which makes it manifest that the 'person' who becomes entitled to a refund automatically, pursuant to a favourable decision in an appeal and revision, is the one who had filed refund application within time and on the same being rejected for any reason, had gone up in appeal or revision; even otherwise there are abundant authorities for the view that the term "any person" cannot encompass parties who were not directly involved in the proceedings or were not represented through, or connected with, the said party.
24. Although, even a reference to any authority, in support of the interpretation, we are putting on this term 'any person' was not needed but still we find a number of cases arising with reference to second proviso to Section 34(3) of the Indian Income-tax Act, 1922 which find mention at page 169 of Law Lexicon (supra) relied upon by the learned counsel, laying down in categorically that the term 'any person' means only a party to the proceedings, or the one who was duly represented through that party, such as members of a Hindu undivided family or partners of a firm or a minor through his guardian or other persons who could be treated as successors-in-interest or beneficiary of that party. There is a clear enunciation of this principle in AIR 1960 Allahabad 97, at Page 99 (bottom para) in the case of Pt. Hazari Lal v.Income-tax Officer, laying down that in any judicial or quasi-judicial proceedings, the orders that are passed normally govern a person who is party to the proceedings and so far as other persons are concerned who may not be a party directly, they can be only those who are presumed to have had a sufficient opportunity of being represented in the proceedings through the actual party, such as partners of a registered firm or shareholders of a company in the matter pertaining to declaration of dividends by a company. Same proposition has been enunciated in AIR 1967 Patna 49, AIR 1965 Madras 422, and AIR 1979 Bombay 30 where it was held that the word 'any person' means a person intimately connected with the assessment under appeal. We, therefore, find it impossible to subscribe to the view projected by the learned counsel that the term 'any person' used in Sub-section (3) of Section 27 would envisage 'persons' who were never parties to the proceedings, but would nevertheless be covered by the ratio of a decision. The matter is rather clinched by the authorities quoted as one, which defeat the arguments put forward by the learned counsel. We thus find that there is no escape for them to become entitled to a claim for refund from Customs authorities, they have to come within the time, specified by Section 27.
25. We also find unable to accept the proposition that this Tribunal is a 'court' in that sense of the term where general law of limitation would apply. We feel fortified in this view by judgment of AIR 1983 Karnataka 164 (Revanappa, Petitioner v. Gunderao and Ors. etc.
Respondents) laying down that merely because an authority or a body (Motor Accident Claims Tribunal in this case), is entrusted with the judicial powers and functions of the State, and is having some of the attributes of a civil court, by itself, will not be a determining factor to hold that such a body or authority is a Court, in the strict sense of the term, falling within the hierarchy of Courts established under the Constitution.
26. The contention that all central legislation shall apply to the Tribunal cannot thus be accepted particularly when we find the intention of the legislature expressed to the contrary, by way of provisions contained in Sub-sections 7 and 8 of Section 129-C of the Act, where we find that the Tribunal has been vested with only specified powers conferred by certain provisions of the Code of Civil Procedure, 1908 and Code of Criminal Procedure, 1973; which leads to inescapable inference that application of all other provisions of these Codes, and of course, of all other laws is excluded. Even if the Tribunal could be considered to be a judicial body, even then we have the authority of no less than that of Supreme Court that applications with reference to Article 137 of the Limitation Act, 1963, are confined to applications, to be filed before a Civil Court whether under the Code of Civil Procedure or any other Act. (AIR 1977 S.C. 282-Kerala State Electricity Board, Trivandnim v. T.P. Kunhaliumma). Reference to Article 178 of the Limitation Act, 1963 by the learned Counsel appears to be based on some misconception as there is no article beyond Article 137 in the aforesaid Act. We, therefore, are unable to accede to this line of argument put forward by learned Counsel. We have already observed in the case of Miles India (supra) that in case some payment of duty is considered to be mistaken, and the party takes recourse to the remedy by way of a civil suit under Section 72 of the Contract Act, then limitation period of three years as provided by the Limitation Act may be available. Same principle has been reiterated by Bench 'C' of the Tribunal in case :-Sandoz (India) Ltd. (supra).
27. We also do not find any authority of the Supreme Court laying down that a general period of three years under the Limitation Act would be applicable to applications under Section 27 of the Act. We, therefore, find the argument that law laid down by the Supreme Court in similar legislation should apply is misconceived because no judgment of the Supreme Court has been cited which could support the contention about availability of general period of limitation before statutory authorities. We rather find that Sub-section (4) of Section 27 of the Act clinches the matter beyond all doubt, by unambiguously laying down no application for refund, can be entertained except under Section 27.
28. In the result, we are constrained to dismiss the appeal, confirming the stand of the lower authorities about the applications for refund being barred by limitation, in view of the provision of Section 27(1) of the Act, and hold the same to have been rightly rejected.