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Assistant Collector of Customs and ors. Vs. Premraj and Ganapatraj and Co. (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectExcise;Customs
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 250 of 1977
Judge
Reported in1978(2)ELT630(Mad)
ActsCustoms Act, 1962 - Sections. 27; Constitution of India - Articles 32, 226 and 265
AppellantAssistant Collector of Customs and ors.
RespondentPremraj and Ganapatraj and Co. (P) Ltd.
DispositionAppeal dismissed
Cases ReferredMadras Rubber Factory v. Union of India
Excerpt:
- - 1. this case raises a question which, though interesting, we consider, can be decided only one way, as it has been done by koshal j......as it has been done by koshal j., in allowing the writ petition asking for refund of the extra customs duty paid by the respondent. the notification fixing the customs tariff was admittedly before the date on which the bill of entry was submitted by the respondent. fairly, without noticing the change in the tariff rate effected by the notification, the respondent paid the duty at the rate that originally prevailed. an application for refund was, however, made after the time stipulated under section 27 of the customs act, 1962. this was rejected by the customs authorities. thereafter, the writ petition which was allowed by the judgment under appeal, was taken, and it was argued that the collection of duty was without the authority of law and that this court had not been inhibited by.....
Judgment:

P.G. Nair, C.J.

1. This case raises a question which, though interesting, we consider, can be decided only one way, as it has been done by Koshal J., in allowing the writ petition asking for refund of the extra customs duty paid by the respondent. The notification fixing the customs tariff was admittedly before the date on which the Bill of Entry was submitted by the respondent. Fairly, without noticing the change in the tariff rate effected by the notification, the respondent paid the duty at the rate that originally prevailed. An application for refund was, however, made after the time stipulated under Section 27 of the Customs Act, 1962. This was rejected by the Customs authorities. Thereafter, the writ petition which was allowed by the Judgment under appeal, was taken, and it was argued that the collection of duty was without the authority of law and that this court had not been inhibited by the period provided by Section 27, which would prevent the customs authorities from ordering refund. It was further submitted that this Court should exercise jurisidiction under Article 226 of the Constitution and given effect to what is provided under Article 265 of the Constitution, which is in these terms-

'No tax shall be levied or collected except by authority of law.'

The duty that has been levied-we assume that the duty that has been imposed is also a tax within the meaning of Article 265 of the Constitution and no point was taken in this regard before us, was certainly without the authority of law. There is, therefore, no jurisidiction either to impose the tax or collect the same. This being so, the provisions of the Constitution must prevail notwithstanding the difficulties that may be experienced by the authorities who function under the Act in directing refund.

2. Our attention was drawn to the decision of the Supreme Court reported in Madras Rubber Factory v. Union of India, : 1983(13)ELT1579(SC) , where an order of the Central Government passed in further proceedings from an order under Section. 27 of the Customs Act was upheld by the Supreme Court in an appeal taken from that order by special leave granted by the Supreme Court. In that appeal, the Supreme Court could not have exercised its jurisidiction under Article 32 of the Constitution but could only have decided the question whether the authority functioning under the Act had acted in accordance with law. This decision is distinguishable. No decision of the Supreme Court where it had refused to exercise jurisdiction under Article 226 of the Constitution in an application for refund of tax collected without the authority of law, had been brought to our notice. In the light of the above, we dismiss the appeal. We have chosen to write a speaking order in dismissing the appeal because the matter was argued at length before us and we assume, that it is not going to end here.


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