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Premier Tyres Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1984)(16)ELT419TriDel
AppellantPremier Tyres Ltd.
RespondentCollector of Customs
Excerpt:
1. appellants filed revision application to government of india against order disposing of 10 appeals dated 29-11-1972 passed by the appellate collector of customs, madras. the govt. of india by their order dated 19-7-1976 set aside the order of the appellate collector and remanded the matter to the appellate collector of customs with certain directions. the appellants then filed writ petition in the high court of kerala at ernakulam. the high court by its order dated 7-8-1980 in o.p. no. 312/1977-d set aside the order of the govt. of india and directed the govt. of india to reconsider the matter after affording an opportunity of being heard to the appellants. it is this revision aplication which stands transferred to the tribunal to be disposed of as an appeal presented before it.2. in.....
Judgment:
1. Appellants filed revision application to Government of India against order disposing of 10 appeals dated 29-11-1972 passed by the Appellate Collector of Customs, Madras. The Govt. of India by their order dated 19-7-1976 set aside the order of the Appellate Collector and remanded the matter to the Appellate Collector of Customs with certain directions. The appellants then filed writ petition in the High Court of Kerala at Ernakulam. The High Court by its order dated 7-8-1980 in O.P. No. 312/1977-D set aside the order of the Govt. of India and directed the Govt. of India to reconsider the matter after affording an opportunity of being heard to the appellants. It is this revision aplication which stands transferred to the Tribunal to be disposed of as an appeal presented before it.

2. In accordance with a decision of the Tribunal and practice obtaining in the Tribunal, therefore, the appellants have filed 9 more appeals so as to cover all the appeals disposed of by the Appellate Collector by the said order. This order will dispose of all the ten appeals.

3. The appellants by Bill of Entry Nos. ID. 63/8-12-1970, 74/9-9-70, 65/11-1-1971, 118/18-9-1970, 78/13-1-1971, 33/6-10-70, 77/15-9-1971, 78/12-11-70,7/2-2-71 and 143/18-11-1971, between the period 8-12-1970 to 18-11-1971 imported 10 consignments of V.P. Latex. The goods were assessed under Item 82(3) of I.C.T. with countervailing duty under T.I.15A of C.E.T. The appellants applied to the Asstt. Collector of Customs for refund of duty claiming re-classification, of the goods under Item 78 I.C.T. but the same was rejected. In appeal before the Appellate Collector of Customs, Madras, the appellants claimed re-classification not under Item 87 of I.C.T. as they did before the Assistant Collector but under Item 39 of the I.C.T. The Appellate Collector rejected the appellants' claim and upheld the original classification under Item 82(3) of I.C.T. read with 15A of the C.E.T, In the meanwhile, the Supreme Court delivered judgment on 6-10-1975 in M/s, Dunlop India Ltd.. v Union of India and Ors. reported in AIR 1977 S.C. 597=1983 E.L.T. 1566 (S.C.) holding the V.P. Latex was classifiable under Item 39 of l.C.T.4. In the grounds of appeal (revision) the appellants have contended that the goods are correctly classifiable under Item 39 of I.C.T. at 27 1/2|% ad valorem plus countervailing duty of Rs. 300/- per metric tonne.

5. At the hearing Shri J.B. Koshy, Advocate represented the appellants and Shri A.S. Sunder Rajan, Departmental Representative represented the respondent Collector. They were heard.

6. Shri Kosh, Learned Advocate for the appellants relying on the Supreme Court judgment (Supra) and Ceat Tyres of India Ltd. v. Union of India-1983 E.L.T. (Bombay) submitted that the goods V.P. Latex were classifiable under Item 39 of I.C.T. On behalf of the Respondent, Shri A.S. Sunder Rajan frankly conceded that the Supreme Court judgment was applicable in the appellants' case and that the goods would be correctly classifiable under Item 39 of I.C.T. as claimed. In view of this concession and the Supreme Court judgment, appellants' claim for classification of the goods under Item 39 of l.C.T. would have to be accepted. Shri Sunder Rajan, however, contended that appellants' claim for refund should be limited to the amount which would have been admissible to the appellants under Item 87 of the I.C.T. as originally claimed. Arguments of the Department seem to be that while an amendment in claim as to Item or Heading or Notification could be accepted for proper classification, it could not be accepted for the purpose of giving relief to the assessee if on the date such amendment is made, it is barred by limitation under Section 27(1) of the Customs Act, 1962.

The understanding seems to be that the amendment will take effect from the date it is made and not from the time the claim was originally made. Sh. Koshi, on behalf of the appellants disputed this contention.

He submitted that the appellants even before the Appellate Collector had claimed classification under Item 39 of I.C.T. He further submitted that if on proper classification, the goods were found classifiable under Item 39 I.C.T. the excess amount could not be retained by the Government as the same would be without authority of law and refund could not be denied to the appellants on the ground that their original claim was under Item 87 of l.C.T. Appropriate consequential refund as a result of re-classification under Item 39 of l.C.T. should be granted to them.

7. The question thus arising in this appeal is : in a case where the appellant has made a claim for refund claiming classification under a particular heading or Item and later the proper classification is found to be under some other heading or Item - such classification resulting in refund of larger amount than admissible under the heading or Item originally claimed, whether the differential amount as a result of such proper classification should be refunded to the appellant or refund should be limited to the amount which would have been admissible under the Item or heading originally claimed.

8. Section 27(1) of the Customs Act, 1962 prescribed a time-limit for making claim of refund. Admittedly, the appellants made an application claiming refund in which they claimed classification under Item 87 of the l.C.T . It is to be seen whether limitation stipulated in Section 27 of the Act would be applicable when appellant at a later stage after expiry of the time-limit set out in Section 27 of the Act claimed classification under Item 39 of l.C.T. which according to the Supreme Court is the correct classification in respect of their goods.

9. In the paras following, it would be shown that an amendment in claim could be made even after expiry of limitation, if it is necessary for the purpose of determining the question in controversy and if it does not work injustice to the other side, and in such a case an amendment would take effect from the date of original claim and not from the subsequent date when it is allowed.

10. Order 6, rule 17 of the Code of Civil Procedure, 1908 provides for amendment of pleadings. The rule is worded as follows : "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." Order 41, rules 1 and 2 of the Code set out what Memo, of appeal filed under the Code should contain. Rule 2 inter alia provides that an appellant may not except by the leave of the court, urge or be heard in support of any ground or objection not set forth in the Memo of appeal.

In fact Rule 2(ii) and (iii) of Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) RuLs, 1982 (hereinafter called Tribunal Rules), are analogous to rules 1 and 2 of Order 41 of Code of Civil Procedure. The Tribunal Rules have also a provision for amendment of appeal but the perusal of the same shows that it has nothing to do with amendment or pleading by a party and is not on the same lines as Order 6, rule 17. It may be stated that order 6, rule 17 in C.P.C. has been held applicable to proceenings where the applicable law, or rules do not have a comparable provision. There is overwhelming case law on the point. It is not necessary to mention all the cases.In Dilbagh Rai Jarry v. Union of India and Ors.-\974 S C. 2 SCR 178, a case relating to payment of Wages Act, the Supreme Court held : - "Mr. Bishan Narain next contends that...The Code of Civil Procedure, it is urged, does not govern amendment of application under Section 15(2) of the Act. The contention is untenable. While it is true that Rules 17 and 18 of Order 6 of the Code do not, in terms apply to amendment of an application under Section 15(2), the Authority is competent to devise, consistently with the provisions of the Act and the Rules made thereunder its own procedure based on general principles of justice, equity and good conscience." In Sunder Lal and Ors. v. Balwant Hanmant Alurkar - AIR 1975 Delhi 108, the provision was held applicable to proceedings befor Motor Accidents Claims Tribunal though the rule in terms was not applicable either by any provision under Motor Vehicle Act or by any rule framed thereunder.

11. The provision has also been held applicable to proceedings under Workmen's Compensation Act, Petition under Article 226 of the Constitution of India, under Provincial Insolvency Act, Tribunal constituted under Displaced Persons (Debts adjustment) Act, proceedings before Election Tribunal and before many other similar bodies.

12. From the foregoing, there can be no doubt that the Rule would be applicable even to the claims made under Customs Act, 1962 before the Tribunal. This would also mean that the precedents dealing with interpretation of the rule would also be applicable in proceedings under the Act before the Tribunal, 13. The principles to be borne in mind for allowing an application for amendment are subject-matter of a number of precedents. In the instant case, we are concerned with the question whether an amendment can be allowed after limitation for the same has expired.In L.J. Leach & Co Ltd. v. Jardine Skinner & Co.-1957 SCR 438, the Supreme Court held as under : "It is no doubt true that courts would as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.

In Charan Das v. Amir Khan (1) the Privy Council observed : "That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time. Yet there are cases where such considerations are outweighed by the Special circumstances of the cases."Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors.~SCR 1957 (595) is another Supreme Court decision on the point.L.J. Leach & Co. v. Jardine & Co. (Supra), Supreme Court upheld an application for amendment of the plaint in High Court made by the plaintiff though the same on the date of the application for amendment was barred by limitation. The Supreme Court held that the application for amendment did not really introduce any new case nor alter the natuie of relief sought and though the application for amendment was made after the expiry of the period of limitation for a suit, the appellant did not have to meet a new case and he was not taken by surprise nor did he have to meet a new claim set up for the first time after the expiry of period of limitation. The Supreme Court also approved the principles enunciated by Bachelor Judge in Kishan Das Rup Chand's case (1900) ILR 33 Bombay-644, which are in the following words : (b) of being necessary for the purpose of determining the real questions in controversy between the parties." It is necessary to refer to an argument advanced before the Supreme Court in this case, because the same is of considerable importance for the present appeal. Counsel for the appellants' relying on observation of Beaman Judge in a case inter alia submitted that one of the tests to be applied to an application for amendment was-could the party asking to amend obtain the same quantity of relief without the amendment. The arguments advanced and the observations of the Supreme Court for proper appreciation are extracted below : "Learned Counsel for the appellant referred us to the decision in Kisandas Rupchand v. Rachappa Vithoba and placed great reliance on the observation of Beaman J. at p. 655 : 'In my opinion, two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle.

First, could the party asking to amend obtain the same quantity of relief without the amendment If not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed'. He contended that the first test laid down in the aforesaid observation was not fulfilled in the present case.

We do not agree with this contention. Frist it is not feasible nor advisable to encase a discretionary power within the strait jacket of an inflexible formula." It might be mentioned that though in the judgment in question the relief as a result of amendment remained the same, the Supreme Court observed that there could not be an inflexible formula. Thus in appropriate case, an applicant could get more relief.

A.K. Gupta & Sonsv. Damodar Valley Corporation -1967(1) SCR (796) is another Supreme Court judgment on the point. The appellants in the case had applied in the High Court for amendment of the plaint for adding an extra relief which was refused, by the High Court. The Supreme Court while granting the amendment after referring to earlier case law on the subject (some of which have already been referred to above in this order) held as under : "It is not in dispute that on the date of the application for amendment, a suit for a money claim under the contract was barred.

The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred Weldon v. Neale (1). But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to not more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation : See Charan Das v. Amir Khan (2) and L.J. Leach & Co. Ltd. v. Jardine Skinner and Co. (3). The principal reasons that have led to the rule last mentioned are first, that the object of Court and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith) (1) and secondly, that a party is strictly not entitled to rely on the statute of Limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended, Kisandas Rupchand v. Rachappa Vidobha (2) approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil. The expression 'cause of action' in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v Gill (4) in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Uncos Property Corporation Ltd. (5) and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas', Dornon v. J.W. Ellis & Co.

Ltd. (6). This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.Haridas, Girdharidas and Ors. v. Varadaraja Pillai and Anr. - AIR 1971 S.C.2366, where an application for amendment though barred by time on the date when it was made was granted by the Supreme Court.

17. As to the nature and scope of the discretion of Court in granting an application for amendment under Order 6, rule 17 the following observations of the Supreme Court in Jai Jai Ram Manohar Lal v.National Building Material Supply, Gurgaon-AIR. 1969 S.C. 1267 are important : "Rules or procedure are intended to be a handmaid to the administration of justice. A party cannot be just refused relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of cost. However, negligent or careless may have been the first omission, and however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." 18. From the foregoing, it would be clear that if in the ends of justice, an amendment is considered necessary it may be allowed even after expiry of limitation, if the Courts or Tribunals after considering the facts and circumstances, think it appropriate to order the same.

19. About Order 41, Rule 2, the Supreme Court in AIR 1958 S.C. 512, has held that the court may grant an appellant leave to raise a point if it is a question of law depending on no new facts except those already on the record.

The amendment of pleading under Rule 17 is through written application and leave to raise a new ground not set out in memorandum of appeal could be either through a written application or could be made even orally. It is not proposed to make a comparative study of the two provisions, so far as the present case is concerned. The consequence of applying either of the two provisions in the present appeals would be the same.

20. The question before us is whether, if such an amendment is allowed on ground not set out in the memorandum of appeal allowed to be raised, if accepted, from what point of time do they take effect, whether they take effect from the time they are granted or from the date the claim was originally made. The matter need not detain us long. Except where an amendment adds a new party or arises out of events subsequent to the institution of the suit, it is well settled that it relates back to the date of suit or claim as originally filed (Infar Ahmed v. Nabil Ahmed Khan, AIR 1972, Allahabad, following AIR 1966 S.C. 1267).

21. In view of the foregoing, it would not be appropriate to hold that an amendment would take effect from the date it is allowed. In view of overwhelming case law on the point an amendment except in the two category of cases mentioned in para 20 after it is allowed would relate back to the time the claim was originally made. This would also be applicable of a new ground if allowed to be raised at the Tribunal or appellate stage.

22. When the present case is examined in the light of foregoing, it is noticed that appellants claimed classification under item 87 of I.C.T.before the Assistant Collector of Customs. The order of the Appellate Collector shows that before him the appellants claimed classification under heading 39 I.C.T. and Collector disposed of the claim on merits after examining the appellants claim in the light of this item. The controversy for decision before the Appellate Collector as also before the Tribunal is proper classification and collection of proper duty.

The appellants' claim at all stages was a claim for proper classification and refund of excess duty on such proper classification.

Amendment of the claim so as to determine applicability of Item 39 I.C.T. was necessary in the interest of justice. The Department cannot, justly claim that in being called upon to refund excess duty consequent upon proper classification, injustice is caused to it. Appellants' claim for classification under Heading 39 of I.C.T. cannot be said to be a new claim made on a new basis constituted by new facts. It cannot be said to be based on new set of ideas. Applying the test laid down in A.K. Gupta & Sons' case (Supra) it cannot be said that there is any question of limitation in applying Hern 39 I.C.T. in the case. Even if limitation under Section 27(1) of the Act be held applicable in raising this plea, after the appellants have been allowed to amend the claim and raise the plea, the same would relate back to the time the claim was originally made in view of the precedents cited above.

23. At this stage, some of the orders passed by the Tribunal may be noticed :In Nav Bharat Corporation v. Collector of Customs, Bombay - Order No. B-413/B (Appeal No. 128/77-B), it was observed "Wrong citation of the Tariff item, Notification, rule or Section can be corrected at any stage so long as the nature and substance of the claim does not change and the appellants do not ask for any higher amount of refund than originally claimed." Relying on A.K. Gupta & Sons, case' it has been observed above that appellants' claim for classification under Heading 39 I.C.T. cannot be said to be a new claim made on a new basis constituted by new facts.

The nature and the substance of the appellants' claim, therefore, does not change. As for the observation in the order of the appellants not making claim for any higher amount of refund, an examination of the order shows that the question whether higher amount than admissible under item, heading or notification originally claimed would be granted did not directly arise for consideration in the case before the Tribunal. The observations of the Tribunal in the order are in the nature of obiter and do not have a binding force.In Food Corporation of India v. Collector of Customs, Madras -1983 E.L.T. 361 (CEGAT), the Tribunal held that new plea taken at the appellate stage was hit by limitation under Section 27 of the Customs Act, 1962. From a reading of the order, it is noticed that new plea was not allowed to be raised on the ground of limitation. The order did not enter into question as to what would be the effect if the plea were allowed to be raised and accepted; from what time it would take effect.

In the present case, the plea has been accepted. The two cases are not identical and are different. The ratio of the decision is not applicable to the present appeal.

25. There is one more reason why the appellants' claim for refund consequential to classification under Item 39 of I.C.T. must be accepted. On behalf of the appellants, it was urged that they were interveners before the Supreme Court in M/s. Dunlop India's case. This was not disputed by the learned Departmental Representative. The judgment of the Supreme Court in para 5 mentions that there were several intervenes in the appeal and the entire Tyre Industry was interested in the matter. A reading of the judgment as reported in AIR 1977 S.C. 597 shows that at the top of the judgment, the appellants M/s. Premier Tyres Ltd. were intervener No. 5 and were represented by Mr. I.N. Shroff, Advocate. The appellants' this contention is well founded. Para 40 of the judgment shows that appellants M/s. Dunlop India Ltd. and their Agents had originally claimed classification under Heading 87. The Supreme Court, however, held proper classification of V.P. Latex to be under heading 39 of I.C T. Judgment does not show that the Supreme Court limited the refund to amount admissible under item 87 as originally claimed. When the appellants were interveners in the judgment in Dunlop India's case, which the Department also accepts to be applicable to the present appeal, it would not be proper to deny benefit of the Supreme Court judgment in full to the appellants.

26. One more reason why consequential refund should be granted to the appellants is that the Supreme Court in the said judgment observed : "There is, however, no estoppel in law against a party in taxation matter. In order to clear the goods for the Customs, the appellants' agents may have given the classification in accordance with the wishes of the authorities or they may even be under some misapprehension. But when law allows them the right to ask for refund on a proper appraisement and which they actually applied for", the Supreme Court did not attach any significance to the fact that the appellants M/s.

Dunlop India Ltd. had in certain Bills of Entries given item No. 87 of the I.C.T. for classification of V.P. Latex. Now the proper item applicable to the goods has been found to be 39, if the refund is limited to the amount admissible under item 87 as originally claimed, this would be applying an estoppel against the appellants the very thing which the Supreme Court has forbidden.

27. Besides, I.T.C. for Item 39 prescribes a rate of duty. We have found the appellants' goods properly classifiable under Item 39 and the appellants are only liable to pay duty prescribed against the said item. If any, excess duty is recovered from the appellants above the rate prescribed, the same would be offending Article 265 of the Constitution of India which inter alia prohibits collection of tax except by authority of law. It would also mean that we are increasing the duty prescribed under Item 39 and exercising a power of legislation which we do not possess.

28. A point requires mention, The Supreme Court judgment in M/s. Dunlop India's case (Supra) arose out of special leave granted by the Court against an order of the Government of India. It was not a decision on a writ petition- Any argument that the Supreme Court in exercise of writ jurisdiction had wide powers to pass any order, in view of the foregoing, would not be available in the case.

29. Apart from the above, Section 27 (3) of the Customs Act, 1962 provides for refund of amount to a person without his making any claim in that behalf if such refund becomes due as a result of any order passed In appeal or revision. In the present appeal, after the goods are found properly classifiable under item 39, this provision would take care of refund to the appellants even without their making a claim for it, if a claim specifically mentioning item 39 I.C.T. were considered necessary. This is subject to observations already made above.

30. A doubt has been expressed that if on proper classification more amount becomes realisable from the Assessee, should such excess or differential amount be realised from him consequent on such proper classification. The question does not arise for determination in the present appeal and need not be answered. It may, however, be stated that an answer to this question would depend on whether the Department has kept its claim alive for such excess amount.

31. In view of the foregoing, answer to the question for decision in the present appeal is that if on proper classification refund of larger amount than admissible under the heading or item originally claimed becomes payable to the appellant, such larger amount should be refunded to the appellants and should not be limited to the amount admissible under the item or heading originally claimed.

32. It has been expressed that these are taxation matters and the interpretation with regard to another enactment should not be imported herein. This is hardly a ground to ignore the law laid down by the Supreme Court when the Supreme Court judgments do not make any such exception in respect of taxation matters. Besides, Dunlop India's case (Supra) is directly applicable to the present appeals and cannot be overlooked.

33. As already mentioned, in the grounds of appeal (Revision), the appellants for the purpose of additional duty (C.V.D.) claimed classification under Item 16AA of the C.E.T. The Supreme Court judgment in M/s. Dunlop India Ltd. (Supra) did not express any opinion relating to countervailing duty under item 16AA of the C.E.T. Shri Koshy, learned Counsel for the appellants also did not address any arguments on this aspect of the matter. The classification, therefore, of the goods for the purpose of countervailing duty under item 15A of the C.E.T. in the circumstances aforesaid calls for no interference.

34. As a result of the above discussion, the appeal is partly allowed.

Classification of appellants' goods V.P. Latex under Item 82 (3) of I.C.T. is set aside ; instead, the goods are held properly classifiable under Item 39 of I.C.T. with consequential refund to the appellants or the purposes of Customs duty. As for additional duty (countervailing duty) the classification made by the lower authorities under Item 15A of the Central Excise Tariff, this calls for no interference and is upheld.36. Section 27 of the Customs Act, 1962 provides that any person claiming refund of any duty paid by him may make an application for refund of such duty to the Asstt. Collector of Customs before the expiry of six months from the date of payment of the duty and if on receipt of any such application the Asstt. Collector is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him, he may make an order accordingly. The words, "refund of any duty paid by him" clearly refer to the amount of duty paid by the assessee. The assessee may claim that no duty was payable at all and in the consequence may ask for refund of the entire duty paid. Or, he may claim that the duty was collected from him in excess and after setting out the grounds of his claim he may claim refund of the amount which he feels was in excess collected, in either case, he is to specify what part of the amount paid by him should be refunded to him.

Such specification of the amount can be done in two ways -directly by specifying the amount in rupees and paise and indirectly by setting out the grounds of the claim and asking for the consequential refund. The important thing to note is that in either case the assessee has to set out the size of his claim, i.e., the quantum of money of which he is claiming refund. And this has to be done within six months from the date of payment of the duty. After six months, he cannot claim any refund unless he had originally paid the duty under protest or under provisional assessment. The appeals before us are not cases of payment of duty under protest or under provisional assessment. It is not, therefore, necessary to dwell on this aspect. Suffice it to say that if the assessee wants to claim refund of any part of the duty paid, he has to do so within six months. It logically follows from this that after having made a claim for some amount within the time-limit of six months, he cannot increase the amount of his claim after the time-limit is over. For, that would amount to making a supplementary claim. If the assessee cannot make a fresh claim after six months, he cannot make a supplementary claim either after the time-limit is over. By asking for some amount within the time-limit, the assessee cannot claim much larger amount after the time-limit.

37. The facts of the present 10 cases before us are that the appellants originally paid customs duty on V.P. Latex at the rate of 100 per cent plus 36 per cent CVD [Item 82(3) I.C.T.-artificial or synthetic resin/Item 15A C.E.T.]. They filed refund applications under Section 27 claiming that only 60 per cent customs duty under Item 87 I.C.T.(articles not otherwise specified) plus 36 per cent CVD under Item 15A C.E.T. ought to have been [charged. They asked for refund of the customs duty collected in excess. Their claims were rejected by the Asstt. Collector. The appellants filed appeals before the Appellate Collector. At that stage, long, after the time-limit of six months under Section 27 was over, they contended that only 27-1/2 per cent customs duty under Item 39 I.C.T. ("Rubber, raw" plus CVD at the rate of Rs. 300/- per M.T. under Item 16AA C.E.T. were payable. In the consequence, they asked for refund of much larger amount of customs duty. They also, for the first time, asked for refund of countervailing duty collected in excess. The Appellate Collector rejected their appeals. The appellants then filed revision applications to the Central Government which, on transfer to this Tribunal, are now before us for disposal as the captioned appeals.

38. The appellants' plea is that the Supreme Court had since held [1983-E.L.T.-1566 (S.C.)-Dunlop India Ltd. and Madras Rubber Factory Ltd. v. U.O.I, and Ors.] that correct classification of the goods, namely, V.P. Latex, was as''Rubber, raw" under Item 39 of the erstwhile Indian Customs Tariff, that they were also one of the interveners in that case and, therefore, benefit of the increased refund should be given to them. In my view, even though the goods were correctly classifiable under Item 39 I.C.T. the appellants cannot be given refund of more than what they had claimed within the prescribed time-limit of six months. Their original challenge to the assessment was not an open-ended one but was restricted to a particular amount; it cannot serve as an umbrella to cover much larger amount asked for by them at a belated stage. The question whether the authorities acting under the Customs Act, including this Tribunal, had any power to waive the time-bar has been considered by practically every Bench of this Tribunal and it is the considered decision of all the Benches that the said authorities as well as the Tribunal have no power to waive or relax the time-bar, whatever may be the justification. I need cite only one such case which is reported at 1983-E.C.R.-242D (CEGAT) (Tribunal)-Miles India Ltd., Baroda v. Collector of Customs, Bombay. If because of the mandatory time-bar the appellants were precluded from filing a fresh claim or a supplementary claim directly after six months, they cannot be allowed to circumvent the time-bar by the backdoor method of amending the grounds of their refund claim. Though the time-bar applies to the amount of refund claim and not to the grounds of the claim as such and in appropriate cases the assessees can be allowed to change the grounds of their claim at a later stage, any change in the grounds that can be allowed by the competent authority has to be consistent with the provisions of the Act. It cannot be allowed to defeat an express provision of the Act. For this, I may refer to the Supreme Court judgment in the case of Dilbagh Rai Jarry v.Union of India and Ors. (1974-S.C. 2 S.C.R. 178) referred to in para 10 of the order of my learned brothers above.

39. My learned brothers have relied on a lot of case law. For the sake of convenience, the said case law can be grouped into two parts-(1) judgments relating to Order 6 Rule 17 of the Code of Civil Procedure, 1908 which provides for amendment of pleadings, and (2) the Supreme Court judgment in the case of Dunlop India Ltd. and Madras Rubber Factory Ltd. already referred to in para 4 above. In my view, Order 6 Rule 17 of the C.P.C. does not apply to customs matters. The Customs Act is a complete code having its own provisions for levy and collection of duty, refunds and recoveries, adjudications and appeals as well as time-limits for various purposes. Where-eyer the framers of the Customs Act felt it necessary to apply certain provisions of the C.P.C., they have done it by making a specific provision for it, as for example, Section 108(3) and 129C(7) of the Customs Act. Only such provisions of the C.P.C. as have been specifically extended to the Customs Act apply to customs matters. Order 6 Rule 17 of the C.P.C. has not been incorporated in, or applied to, the Customs Act and the provision under the said Order is, therefore, not applicable to customs matters. I may mention here a case which came up before this Tribunal.

The assessee's appeal was time-barred under Section 35 of the Central Excises and Salt Act, 1944 as it then stood. The assessee pleaded that the power to condone delays under Section 29(2) of the Limitation Act read with Section 5 thereof was available to the Tribunal. This contention was repelled by the Tribunal in its judgment reported at 1983-E.L.T.-1099 (CEGAT)-Canara Workshops Ltd., Mangalore v. Collector of Customs, Madras. The Tribunal held that the Central Excises Act was a self-contained legislation having its own machinery of collection and its own set of enforcing as well as adjudicating authorities and that the provisions of the Limitation Act did not apply to central excise appeals before the Appellate Collector. What this Tribunal held in relation to the Limitation Act is also applicable with equal force to the Code of Civil Procedure. Therefore, in my view it is not correct to seek the aid of any provision under the C.P.C. to extend the time-limit of Section 27 of the Customs Act. As regards the second case of M/s.

Dunlop India Ltd. and Madras Rubber Factory Ltd., the facts of that case, as seen from paras 3 and 4 of that judgment [1983-E.L.T.-1566 (S.C.)], were different. In that case, the two assessees filed their refund claims originally itself under Item 39 LC.T. In other words, those two assessees originally itself claimed the increased amount of refund. It is further seen from para 40 of the said judgment that the Department's counsel sought to oppose their claims in respect of a few consignments on the ground that in certain Bills of Entry of Dunlop India Ltd., their agents had given the I.C.T. Item No. 87 with regard to the imported V.P. Latex. The Supreme Court repelled this contention saying that there was no estoppel in law against a party in a taxation matter. In the present cases before us, no one is seeking to contest the appellants' claim with reference to what item of the Tariff was declared in the Bills of Entry. The issue here is not, therefore, of estoppel but of time-bar under Section 27. Unlike Dunlop India Ltd. and Madras Rubber Factory Ltd., the present appellants sought refund of much less amount of duty under Item 87 of the Tariff when they filed their refund claims under Section 27 and it was only long afterwards that they claimed the increased amount of refund which the other two assessees had claimed originally itself within the time-limit of Section 27. As the facts in the two cases are different, it cannot be said that not allowing increased amount of refund to the present appellants would amount to applying estoppel against them which the Supreme Court has forbidden. As already stated, the question here is not of estoppel but of time-bar. The question had not arisen in the case of Dunlop India Ltd. and Madras Rubber Factory Ltd. 40. I have no quarrel with the proposition that the State should not retain any tax monies not due to it. My only point is that this Tribunal acting under the Customs Act has no authority to, waive or relax the time-bar.

41. I do not agree with the pleadings of the Department's representative that the appellants' revised and increased refund claim under Item 39 I.C.T. should be treated as a new claim hit by the time-bar and rejected in toto. The appellants have not filed any new claim. They only changed the grounds on which they were seeking refund.

In my view, while it is correct to refuse payment of the increase in the amount claimed by the appellants after the time-limit, the amount originally claimed by them within the time-limit, cannot be refused just because the correct classification was later held to be Item 39 instead of Item 87.

42. Accordingly, I allow all the 10 appeals to the extent of the refunds claimed by the appellants within six months, and nothing more.

43. In accordance with the decision of the majority, the appeal is partly allowed. Classification of the appellants' goods V.P. Latex under Item 82(3) of I.C.T. is set aside and the same are held properly classifiable under Item 39 of I.C.T. with consequential refund to the appellants for the purpose of basic Customs duty. As for Additional duty (C.V.D.), classification under T.I. 15A of C.E.T. calls for no interference and is upheld.


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