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TMI Blog1983 (2) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 21, 1978 (and not December 21, 1979 as would appear from the annexure to the Appellate Order). It was alleged, inter alia, that- (a) notwithstanding the supply of the technical data together with other materials to establish exigibility to duty of the imported goods under Heading No. 27.10 (i) of the Customs Tariff Act, 1975, and in despite of public notification dated the 25th July, 1977 of the Collector of Customs, Bombay, in support of the same and the actual practice of the Calcutta and Bombay Customs in regard to several other consignments of the same materials including those of the Appellant, the Calcutta Customs had, in actual fact, levied and collected duty in terms of Heading 38.01 (19) (i) of the Customs Tariff Act, 1975 ; (b) the difference in the quantum of duty between what was payable and what was actually assessed and paid works out to ₹ 4,40,006.19 in regard to all the five consignments ; (c) nevertheless, the duty assessed was paid by the Appellant without protest. 3. It would appear that- (a) five claims for refund, in all aggregating to the aforesaid sum of money, alleged to have been collected in excess of what was legitimately due w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll on payment of separate set of fees in regard to them condoning the delay and they are numbered as Appeal Nos. 1225 to 1227/81-C. 6. All the appeals have been heard together, and are disposed of by this order. 7. In a brief compass, the Appellant contended that the bar of limitation in Section 27 of the Customs Act, 1962 did not apply to the claims for refund in question inasmuch as- (a) the collection of the excess amount was without any jurisdiction, or at any rate in excess of jurisdiction, wrongful, without authority of law and dehors the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975, as the goods could not have been assessed under any heading of the Customs Tariff Act other than 27.10(1) as would appear from actual practice in other cases of import of the identical material; (b) the assessment was illegal for want of appropriate examination of the imported goods ; (c) the payment was by mistake of law and under duress ; (d) refund of an illegal exaction of tax should not have been refused on the technical ground of bar of limitation where legally a right to obtain refund accrued, 8. Before adverting to the various cases cited at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty collected on the basis of erroneous assessment has been specifically provided for and a period of limitation had also been prescribed ; (c) the remedies provided are not inadequate. The Appellant could have got the error in the assessment rectified in appeal of in other proceedings if he so chose, since questions relating to correctness of an assessment, apart from its constitutionality or competence are for the decision of the authorities constituted under the statute and in accordance with the provisions thereof. 12. Indeed, the Appellant had availed himself in these proceedings of the provision in the Customs Act, 1962, enabling refund (Section 27) but yet he contends that the limitation prescribed therein is not applicable, notwithstanding his payment of the duty assessed without protest, on the grounds that the assessment and levy was without jurisdiction or in excess of jurisdiction or mistake in payment. An application for refund in terms of Section 27 of the Act itself cannot postulate a levy and assessment without jurisdiction or in excess of jurisdiction, or payment under mistake, since such levy, assessment or payment are, obviously, dehors the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly if payment was made under protest. The said observation cannot avail the Appellant. 15. Similarly, the ratio of the Supreme Court in A.I.R. 1966 S.C. 249 (B.K. Bhandar v. Dhamangaon Municipality) cannot also apply to a case where, admittedly, no constitutional ban on recovery of anything in excess of a specified ceiling arises in the instant case where the assessment was made under one rather than another of two competing entries in the Customs Tariff Act, 1975. 16. Reliance on A.I.R. 1971 S.C. 1558 (Union of India v. Tarachand Gupta) cannot avail the Appellant seeing that it was not one of those cases where between two competing entries the statutory authority applied one or the other, though in error . (Para 24 of the judgment). 17. In 1980 E.L.T. 415 (Bombay), (Associated Bearing Company Ltd. v. Union of India and another), also relied upon for the Appellant, the question again was not assessment under one or the other of competing entries in the tariff. Nor was it a proceeding in terms of the statute itself. That was a case where, by a writ petition (and not by an application under Section 11 of the Central Excises and Salt Act) the order of the Asstt. Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be mala fide. (d) the exclusion of the jurisdiction of the civil court does not also imply the exclusion of the jurisdiction of the High Court to issue high prerogative writs against the illegal exercise of authority by administrative or quasi-judicial tribunals ; (e) an erroneous decision of an assessing authority cannot be said to be reached without jurisdiction merely because it may be shown in some collateral proceedings to be wrong. Consequently, the dismissal of the suit instituted to obtain refund of duty alleged to have been wrongfully collected was upheld. It was in conclusion that their Lordships had, before parting with the case, observed that the Union of India need not have resisted a small claim on the ground of limitation. 21. The case was cited for the Appellant to support his contention that limitation as a defence to his claims for refund should not have been set up by the Revenue and, at any rate, is not worthy of acceptance by us. 22. It is, however, a clear authority for the proposition that mere erroneous determination of duty in good faith by an assessing authority, otherwise competent, vested with jurisdiction, and without violating t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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