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Collector of Customs Vs. U. Foam (P) Ltd. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(21)ELT277TriDel
AppellantCollector of Customs
RespondentU. Foam (P) Ltd.
Excerpt:
.....to file the refund application to the concerned assistant. collector. the assistant collector of customs (refund) treated the refund claim application of the respondents filed with the board as a refund claim within the meaning of section 27 (1) of the customs act, ! 962 and allowed the refund of the customs duty which was within limitation, that is, within a period of six months as on the date when the refund claim was received i.e. 1-12-1977. the rest of the claim was disallowed as barred by time under section 27 (1) of the customs act.2. the respondents filed an appeal before the appellate collector of customs, bombay against the order passed by the assistant collector who, by his order in appeal no. 139/81, dated 23-3-1981 accepted the appeal on the ground that the time-limit in.....
Judgment:
1. The facts giving rise to this appeal are that M/s U. Foam (P) Ltd. (hereinafter called the respondent) imported a number of consignments of 'Polyols' during the period 15-11-1976 to 28-1-1978 which were assessed to customs duty under Heading 39.01/06 considering them to be 'Resins'. But later on the customs authorities found that the Polyols imported by the respondents were not resins. Thereafter, the respondents filed a refund claim directly to the Central Board of Excise and Customs for sanction of the refund of excess customs duty paid by them on account of the wrong classification and assessment of Polyols as Resins which was received on 1-12-1977. The copy of the same was also sent to the concerned Assistant Collector for information. The Board did not entertain the refund claim filed by the respondents and advised the respondents to file the refund application to the concerned Assistant. Collector. The Assistant Collector of Customs (Refund) treated the refund claim application of the respondents filed with the Board as a refund claim within the meaning of Section 27 (1) of the Customs Act, ! 962 and allowed the refund of the customs duty which was within limitation, that is, within a period of six months as on the date when the refund claim was received i.e. 1-12-1977. The rest of the claim was disallowed as barred by time under Section 27 (1) of the Customs Act.

2. The respondents filed an appeal before the Appellate Collector of Customs, Bombay against the order passed by the Assistant Collector who, by his order in Appeal No. 139/81, dated 23-3-1981 accepted the appeal on the ground that the time-limit in Section 2 (1) of the Customs Act, 1962 would not apply to the present set of cases inasmuch as duties were not legally leviable on the goods. According to the Appellate Collector, the limitation of 3 years under General Law of Limitation would be applicable to the present set of cases and, therefore, ordered that the appellants be refunded the entire amount claimed by them.

3. The Government of India, issued a Review Show Cause Notice on 2-11-1981 against the said order passed by the Appellate Collector of Customs, Those review proceedings which were pending before the Central Government under Section 131 of the Customs Act were transferred to this Tribunal under Section 131 B(2) of the Customs Act, 1962, to be treated an appeal as if these proceedings were an appeal filed before it.

4. We have heard Shri A. S. Sunder Rajan, J.D.R. for the appellants and Shri Y. G. Ramamurty, Advocate for the respondents and have gone through the record.

5. Shri Ramamurty, the learned counsel for the respondents raised a preliminary objection challenging the jurisdiction of this Tribunal to entertain these proceedings as an appeal before it. According to him, the respondents have received a Notice from the Central Government calling it a review show cause notice against order in Appeal No. 139 of 1981, dated 23-3-1981. The original order of the Assistant Collector was passed on 5-7-1980 and the Appellate order is dated 23-3-1981 which is sought to be reversed by the issue of the said Review Show Cause Notice. A hearing was granted by a Bench comprising of one Additional Secretary and one Joint Secretary of the Government of India on 23-1-1982 but no order was passed till 11th October, 1982 on which date the Customs, Excise and Gold (Control) Appellate Tribunal came into existence. According to Shri Ramamurty, no proceedings were pending before the Central Government which could be transferred to this Tribunal to be treated as an appeal.

6. Shri A. S. Sundar Rajan, J.D.R. countered the arguments of Shri Ramamurty and drew our attention towards the provisions of Section 131 B (2) of the Customs Act, 1962 which reads as under :- "Every proceedings which is pending immediately before the appointed day before the Central Government under Section 131, as it stood immediately before that day, and any matter arising out of or connected with such proceeding and which is so pending shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it".

7. Shri A.S. Sundar Rajan, pointed out that it can not be a case of the respondents that the review proceedings were not pending before the Central Government immediately before the appointed day as mentioned in Section 131B(2) of the Customs Act, 1962. When those proceedings were not disposed of by passing any order naturally they were pending before the Central Government immediately before the appointed day under Section 131 of the Customs Act 1962 and the same have been validly transferred to this Tribunal under Section 131 B(2) of the Customs Act, 1962. This Tribunal has been empowered under the provision of this Sub-section to proceed with such proceedings from the stage, at which it was on that day, as if such proceeding or matter were filed before it. This Tribunal has got jurisdiction to hear this matter as an appeal.

8. The submission made by Shri Ramamurty is without any force in view of the statutory provisions as laid down under Section 131 B(2) of the Customs Act, 1962. As per the provisions of this sub-section, every proceedings which is pending immediately before the appointed day before the Central Government under Section 131, as it stood immediately before that day, shall stand transferred on that day to the Appellate Tribunal and the Appellate Tribunal may proceed with such proceeding or matter from the stage at which it was on that day as if such proceedings or matter were an appeal filed before it. There cannot be any denial of the fact that these proceedings which were transferred to this Tribunal were before the Central Government immediately before the appointed day. Section 131 of the Customs Act, 1962, as it stood before 11-10-1982, contemplated not only Revision Applications against Orders-in-Appeal, but also proceedings for revision of the lower authorities initiated by the Central Government in terms of that Section. Proceedings of either kind which were pending immediately before the appointed date, would, therefore, be within the contemplation of Section 131 B(2) of the Customs Act, 1962. The pending proceedings in the present case have, therefore, been correctly transferred to this Tribunal for disposal as if it were an appeal filed before the Tribunal. The plea of the learned counsel of the respondents that no proceedings were pending before the Central Government immediately before the appointed day is not substantiated from the record. As per his own admission, those proceedings were not disposed of by passing any order by the Bench of Revisional authorities, who afforded personal hearing to the respondents on that matter. When those proceedings were not disposed of by any order, naturally those proceedings were pending before the Central Government on that day when this Tribunal came into existence and rightly those proceedings were transferred to this Tribunal in view of the provisions of Section 131 B(2) of the Customs Act, 1962.

9. We overrule this preliminary objection of the learned counsel of the respondents.

10. On merits, there is no dispute about the facts that duty of customs sought to be refunded was paid during the period 15-11-1976 to 28-1-1978 and that the refund claim was received on 1-12-1977. The only question which requires determination is whether the period of limitation as provided under Section 27 (1) of the Customs Act, 1962 would be applicable in this case or provisions of the general law of limitation would be applicable 11. The Appellate Collector of Customs in the impugned order extended the time limit as contained in the Indian Law of Limitation, which according to him was 3 years and allowed the appeal. As per his conclusion, such of the amounts, which are collected in the name of duties but which are discovered not to constitute duty and the levy and collection of which is found otherwise than by authority of law, have to be refunded since refund of such amounts was warranted by the existence of an unwritten law, which had been brought into existence by a process of evolution.

12. We find that this conclusion of the learned Appellate Collector of Customs, is erroneous and against the mandatory provision of law. In the case of Union of India v. A.V. Narasimhalu, reported in 1983-E.L.T.1534, the Hon'ble Judges of the Supreme Court while interpreting the provisions of Section 27 of the Customs Act, 1962 which contains a bar regarding the entertainment of the claim beyond the provisions of that Section, held that where an enactment is a complete code dealing with the liability to pay duty and for obtaining relief against excessive and erroneous levy, and other related matters, it would not be open to a party to refuse, to resort to the procedure prescribed in a statute.

Once a party places reliance upon a statutory right then it is not open to that party to urge all the restrictions imposed by such statute on the exercise of that right as to the entertainability of that claim should be ignored. As the respondents have claimed the refund of duty under the provisions of the Customs Act, they will have to follow the restrictions imposed by the statute as to time limit. There is not a single decision either of the Supreme Court or of any High Court laying down the proposition that a quasi-judicial authority which is a creation of the statute would be competent to invoke the provisions of the general law of limitation while allowing or disallowing the refund claim of a party by it under the provisions of the statute. The general law of limitation is not applicable in such cases and the Appellate Collector by extending the period of 3 years as contained in the Limitation Act in these proceedings has acted illegally. This proposition of law has been re-affirmed by the Hon'ble Supreme Court in its latest decision in the case of Miles India Limited v. Assistant Collector of Customs (Civil Appeal No. 1633 of 1984 decided on 6-4-1984) wherein their Lordships of the Supreme Court ruled that the Customs authorities acting under the Act were justified in disallowing the claim for refund as they were bound by the period of limitation provided under Section 27 (1) of the Customs Act, 1962. Their Lordiships observed, "if really the payment of duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised." 13. By extending the provisions of general law of limitation to the facts of the present case, the Appellate Collector has exceeded his jurisdiction and passed this order which is erroneous and illegal.

14. Under these circumstances, we set aside the order No. 139/81, dated 23-3-1981 passed by the Appellate Collector, Bombay, and confirm the order passed by the Assistant Collector in this matter.


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