1. Appeal under Section 129A of the Customs Act, 1962 praying that in the circumstances stated therein, the Tribunal will be pleased to order refund of duty collected.
2. This appeal coming up for orders upon perusing the records and upon hearing the arguments of Shri V. Ramachandran, Senior Departmental Representative for the respondent, the Tribunal makes the following: 3. Two claims of the appellants for refund of auxiliary duty paid under Bills of Entry Nos. 13/11-6-80 and 19/13-6-80 were rejected by the Assistant Collector of Central Excise, Customs Division, Tuticorin, as barred by limitation under Section 27 of the Act, as the applications had been received on 11-8-1982, after a period of six months from the date of payment of duty as stipulated in that section vide IM No.259/27-5-80 dated 8-2-1983. An appeal against this order was rejected by the Collector of Customs (Appeals), Madras, by his order No. C. 24 AP/1/83 dated 22-7-1983.
4. In the appeal before us it is contended that what has been collected is auxiliary duty in terms of Notification No. 25-Customs dated 12-3-1980 which was exempted under Cus. Notification No. 108 dated 7-6-1980. The duty was paid under protest at the time of clearance of the goods and hence the provisions of Section 27 will not apply. It has also been claimed that the Assistant Collector had no authority under law to collect the duty and hence refund of the sum collected cannot be withheld in terms of Section 27 of the Act.
5. During the hearing, elaborating the written submissions the learned advocate for the appellant drew our attention to entries under cols. 11 and 12 of the relevant bills of entry. It is indicated under col. 12 "C.V.D. exempted as per Ministry telex F. No. illegible dated 7-6-1980". No formal procedure for making a protest and following it up has been laid down in the Customs Act unlike in the Central Excises and Salt Act, 1944. According to the New Waverley dictionary, a protest is "of dissent or remonstrance". The protest can be in action or in words.
Here, by indicating that no duty was payable and citing a telex, the appellants had protested by action. Continuing the learned advocate argued that Section 27 refers to a claim for refund of any duty paid.
Section 2(15) of the Act defines duty as "a duty of customs leviable under this Act" (emphasis applied). As the amount in question is not leviable under the Act, provision of Section 27 will not apply.
6. It has been held by the Tribunal in a similar situation in the case of Union Carbide India Limited, Calcutta v. Collector of Customs, Calcutta, reported in 1984 (17) E.L.T. 505 (Tribunal) that provisions of Section 27 will not apply. The learned counsel for the appellants referred to the minority view expressed in the case of "M/s.
Laboratories Vifor (India) Private Limited v. Collector of Customs, Bombay" 1983 (2) ETR 291 that collection without authority will not be governed by the provisions of Section 11B of the Central Excises and Salt Act, 1944. Another decision relied upon was that of the Orissa High Court in the case of "Straw Products Limited v. Factory Officer, Central Excise, Straw Products Ltd. and Ors." 1986 (23) E.L.T. 70 (Orissa) wherein a Division Bench has held that when there is a mistake of law, question of limitation under Rule 11 of the Central Excise Rules, 1944 will not be applicable.
7. The learned Senior Departmental Representative, on the other hand, referred to the established procedure for making a protest and observed that procedure has not been followed in the instant case. Protest has to be endorsed in unmistakable terms on the reverse of the Bill of Entry and got registered by the Custom House and followed up by a formal letter elaborating the terms of protect. This has not been done in the present case. Attention was also drawn to the entries made in the Bill of Entry under cols. 10 and 11; all that has been stated is 'I.D. exempted'. This would show that import duty was exempted. Under col. 12 it is shown as 'C.V.D. exempted as per Ministry telex . . .'.
What is in question here is the auxiliary duty leviable under the Finance Act, 1980. Col. 10 reads as 'A.D. 5%'; under col. 16 amount of total duty has been shown. This will indicate that there was no indication that auxiliary duty was exempted even at the time of filing of the bill of entry. Continuing, he observed that it has already been observed by the Madras Bench of the Tribunal that where amounts have been collected under the Act - Customs or Central Excise - it will not be open to the Department or the Tribunal to ignore the provisions of Section 27 of the Customs Act, 1962 (or Section 11B of the Central Excises and Salt Act, 1944) and grant refund.
8. A scrutiny of the entries in the Bill of Entry would indicate that no protest has been made even prior to the filing of the Bill of Entry, though it has been stated that import duty and C.V.D. are exempted, auxiliary duty has been specifically shown as a rate and quantum in cols. 10 and 11 and carried over to col. 16. Further, the telex referred to by the learned counsel for the appellants is one exempting countervailing duty and not auxiliary duty. We also note that the established procedure for filing of a protest and following it up has not been followed. In the circumstances, we hold that in the present case there is no protest.
9. In passing we would observe that the reference to the meaning of 'protest' as given in New Waverly dictionary is of no assistance to the appellant. The meaning given in that dictionary for protest is 'a solemn or formal declaration of opinion usu, of dissent or remonstrance.' The incomplete quotation given out of context does not help the appellants. The Oxford dictionary also refers to 'protest' as 'formal statement or action of dissent or disapproval, remonstrance'.
The decision in the case of M/s. Laboratories Vifor (India) Private Ltd. is one against the appellants as the order of the Tribunal is that representing the majority view and not that of the minority. The judgment of the Orissa High Court in the case of Straw Products Ltd. v.Factory Officer, Central Excise, Straw Products Ltd. and Ors. deals with a case where the party was going on paying duty under mistake of law and when he came to know of the mistake after seeing another judgment of the Gujarat High Court, he went in writ to the High Court.
Here, we are not dealing with a question of mistake of law. If anything there was ignorance of the provisions of law. The decision of the Tribunal in the case of Union Carbide India Limited v. Collector of Customs, Calcutta, does not help either. Actually, the Tribunal has observed: "Moreover it is not every levy or collection of duty in excess of the permissible limit that becomes straightaway an illegal exaction and hence refundable. It is only if the levy was altogether without jurisdiction ab initio or in excess of jurisdiction that it becomes illegal. Therefore, where the alleged erroneous determination of the duty payable did not result from either want of jurisdiction or acting in excess of jurisdiction, the period of limitation under Section 27 ibid would be applicable. The claim has, therefore, been rightly rejected under Section 27 ibid by the authorities below." 10. In the circumstances we find that the order of rejection of the claims as barred by limitation is based on the facts of the case and is maintainable in law. The appeal is accordingly dismissed.