1. These 5 appeals had been preferred as Revision Petitions to the Government of India against the orders in appeal of the Appellate Collector of Customs, Bombay dated 13.3.1980 under which he had dismissed appeals confirming the order of the Assistant Collector.
These revision petitions have been transferred to this Tribunal under Section 131B of the Customs Act and are being disposed of as appeals.
2. The applications by the appellant were to claim refund of customs duty collected. They had been rejected by the Assistant Collector of Customs on the ground that the claims for refund were time-barred under Section 27(1) of the Customs Act. This conclusion was upheld by the Appellate Collector and the only point to be considered in these appeals is therefore whether the claims were time-barred under Section 27(1) of the Customs Act or not.
3. Admittedly the claims had been preferred beyond the six months period specified in Section 27(1) of the Customs Act. But Shri P.G.Gokhale, Advocate appearing for the appellants contends that the excess payments in these cases were made under a mistake of law and the appellant was therefore entitled to a period of 3 years under Article 137 of the Limitation Act for claiming refund thereof and the applications for refund having been preferred within the said period of 3 years, the applications should not have been dismissed as time-barred. Shri Sundar Rajan appearing for the department contends that the payments in these cases cannot be said to have been under a mistake of law and therefore there is no question of the appellants having had a period of 3 years to claim the refund and that the petitions were rightly dismissed under Section 27(1) of the Customs Act as time-barred.
4. We have carefully considered the submissions on both sides. The contention for the appellant in his grounds of appeal to the Appellate Collector of Customs was that the goods should have been assessed under Heading 48.01/21 read with exemption notifications of 1.3.1978 and 7.9.1978 and, if so, the duty collected would be found to be excessive.
In the applications for refund also the same contention had been raised, though the reference was to the notification dated 1.3.1978 only. Duty appears to have been demanded and collected under Heading 39.01/06. There is no dispute that the goods in question were liable to pay customs duty. They appear to have been made liable for duty under a particular Tariff Heading and the said amount had been admittedly paid without protest. The contention of the appellant is that the goods ought not to have been classified under Tariff Heading 39.01/06 but only under Heading 48.01/21. If this contention of the appellant is correct, then the appellant was entitled to have preferred an appeal against the wrong classification and obtained appropriate relief.
Admittedly, the appellant had not done so, but had merely filed refund claims.
5. When an article is admittedly liable to pay customs duty, the fact that duty is demanded under one tariff heading rather than another, under an order of the authority competent to levy and collect customs duty would not amount to levy outside the jurisdiction of the said authority or even in excess of the jurisdiction of the authority. Such an order would really be one within jurisdiction, though in exercising the said jurisdiction the authority concerned may have committed an error. When, between two competing entries the statutory authority applies one or the other, he may be in error, but it would not be a case of absence of jurisdiction ab initio or even acting in excess of jurisdiction. Therefore, the collection of duty, though may be erroneous, cannot be said to be under a mistake of law, nor the payment by the appellant under a mistake of law. In these circumstances the contention that these cases would not therefore be really applications for refund under Section 27 but must be deemed to be under the general law, inviting application of the appropriate article in the Indian Limitation Act, rather than the period of limitation prescribed in the Customs Act, does not appear to be correct. There can be no doubt that when specific provision is made in a particular statute for obtaining relief under that statute and a period of limitation is also prescribed in that statute itself for obtaining such relief, the applications for such relief would be governed by the said period of limitation and one cannot take recourse to the provisions of Indian Limitation Act with reference to such applications which are to be made before the authorities constituted under the Act,Madras Rubber Factory Ltd. v.Union of India 1983 ELT 1579 would support this conclusion. The Madras Rubber Factory had been importing VP. Latex and had been paying customs duty thereon under item 87 as ordered by the Appraiser. Later it claimed refund by applications to the Assistant Collector on the basis that duty was payable under item 39 only. Five of these applications had been dismissed by the Assistant Collector as barred by time, as they had been presented beyond the period of six months prescribed under Section 27 of the Customs Act. The Appellate Collector as well as the Central Government confirmed the said order. The parties appealed to the Supreme Court by special leave. It was pointed out in the Supreme Court that in Dunlop India Ltd. v. Union of India 1983 ELT 1289 : ECR C 476 & 1976 Cen-Cus 150C-SC, the Supreme Court had held on 61.0.1975 that V.P. Latex falls under item 39 only. But the Supreme Court dismissed the appeal holding that even though the duty may have been collected at a higher rate under a wrong tariff item, these petitions for refund had been rightly dismissed as out of time, as the petitions, which were under Section 27, had been presented beyond the period of 6 months prescribed under that section.
7. Shri Gokhale invited our attention to the judgment of the Supreme Court in Commissioner of Sales-tax v. Madan Lal and Sons . Rut that judgment was only to the effect that in the computation of the period of limitation, the provisions of Section 4 to 24 of the Limitation Act would apply, to the extent to which they are not expressly excluded under a special or local law which prescribes a period of limitation different from the one prescribed by the Schedule to the Indian Limitation Act. In the present instance, there is no dispute that an application for refund, if made under Section 27 of the Customs Act, must be presented within six months from the date of payment of duty. Shri Gokhale contends that Article 137 of the Schedule to the Limitation Act would apply to the applications for refund and that would provide for a period of 3 years. But the judgment of the Supreme Court cited supra is no authority for that contention. In the present instance the appellant does not contend in any of the five instances under appeal that there is any need for pressing into service the provisions of Sections 4 to 24 of the Indian Limitation Act in computing the period of limitation prescribed under Section 27. Hence that judgment does not assist the appellant.
8. Thus, it is clear that the levy and collection of customs duty in the instant cases cannot be said to have been under a mistake of law.
Hence there is no question of the appellant being entitled to the 3 year period mentioned in Article 137 of the Indian Limitation Act for preferring his claim for refund rather than the shorter period of 6 months specifically prescribed under Section 27 of the Customs Act for making such applications. Admittedly, the five applications by the appellant were made under Section 27 only. In the circumstance there can be no doubt that all the five applications had been presented beyond the period prescribed therefor and hence they were rightly rejected by the Assistant Collector as out of time, 9. Accordingly, the order of the Appellate Collector confirming the said order of dismissal was also correctly passed. In the circumstances, these appeals are all dismissed;Sd/- H.R. Syiem Sd/- G. Sankaran Sd/- V.T. RaghavacharTechnical Member Technical Member Judicial Member