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TMI Blog1984 (3) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be subjected to customs duty, in excess of 40% in view of Entry No. 12, in the Exemption Notification being Notification No. 29-Cus., dated 10-2-1979 covering : other embellishments for footwear . 3. It appears that a number of claims for refund were filed before the Assistant Collector, which were rejected by him by a consolidated order passed on 31-8-1981 on the view that the applications having been made beyond the period of six months from the payment of duty, now claimed by way of refund, and as such were barred by time in view of the time limit prescribed by section 27 of the Act. On an appeal being carried to the Appellate Collector, he confirmed the view as held by the Assistant Collector and dismissed the appeal by order dated 5th October, 1981, holding that provisions of section 27 of the Act being mandatory, he saw no reason to interfere with the order passed by the lower authority. 4. The appellants assailed this order in the present appeal and per grounds stated therein, it was pleaded that the question that the goods imported by them were covered by the description : other embellishments as contained in Notification No. 29 of 1979, had been settled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a competent authority; secondly, this Tribunal was a court for all purposes and as such the general law of limitation had also to be taken into consideration and that it was not correct to say that the Tribunal could not go beyond the confines of the Customs Act in this regard; and thirdly, due regard should be given to the law laid down by the Supreme Court on similar legislation. 7. Dr. Kantawala elaborated his contentions by first pin-pointing the provisions of sub-section (3) of section 27 of the Act which read as under :- (3) Where, as the result of any order passed in appeal or revision under this Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person, without his having to make any claim in that behalf. He laid stress on the point that any person as finding reference in this sub-section would cover all those persons who were similarly placed as the one whose matter had been decided favourable to the assessees in any appeal or revision under this Act, enabling him to make a claim for refund and that it become incumbent upon the proper officer to entertain such claims for refund and allow the same. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the entitlement to get refund being there, the party ought not to be shut out, merely on the basis of the provisions of section 27(1) of the Act and that in this case period of three years was available from the time the judgment of the revisionary authority came to light and this was a case where the right is deemed to have been created by the said judgment and that article 178 of the Limitation Act would cover all cases of erroneous payments and an assesses could not be thrown out merely on the basis of the provisions of section 27(1). He further placed reliance on a decision of the Orissa High Court reported as 1983 ECR 222D in case Straw Products Ltd. v. Factory Officer, Central Excise, Straw Products Limited, and Others. 11. He lastly urged that decisions given by Supreme Court in matters pertaining to identical legislation had to be given all regard, and cited, in this regard, a case reported as AIR 1977 SC 282 (The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma) and that of Madras Port Trust v. Hymanshll International (AIR 1979 SC 1144) and reiterated that there can be cases of refund other than those contemplated by section 27(1), and that such mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould thus be bound by the limitation provided therein. He also laid stress on principles of harmonious construction of provisions of a statute, citing AIR 1967 SC 1211, in support of his plea. 15. Dr. Kantawala made a short rejoinder claimed by again laying emphasis on the fact that the refund claimed by the appellants was of a different category than contemplated by sub-section (1) of section 27 and that since there was no provision in the Customs Act providing for recovery of payments made under mistake of law; general law of limitation shall override the special law and that in any case the provision could be supplemented by the Law of Limitation and made reference to a matter decided by Bench C of the Tribunal in case pertaining to M/s. Sandoz (India) Ltd., Bombay v. Collector of Customs, Bombay being Order No. 536/1983-C in Appeal No. CD(SB)(T) 1233/80-C, He concluded his arguments by requesting that the matter was of great importance and not free from doubt and as such a fit case for making reference to a larger Bench. 16. We have given very careful thought to the issues raised by learned counsel of the appellants in view of the new stance lent by him to the controver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay, and it is the established proposition that general law of limitation could not be invoked before quasi-judicial authorities which proposition has been laid down by the Supreme Court in cases reported as (1) AIR 1975 SC 1039 and (2) AIR 1978 SC 209. It was also observed in the said authority that period of six months had been very categorically provided by the Customs Act for both the sides; namely for claim for refund as well as short levy to be recovered by the Government because section 28 also places a similar type of embargo on the Government and except in such exceptional circumstances, such as fraud by the party, the Customs authorities have also been debarred from recovery of short levy from a party after a period of six months. 19. In view of the elaborate consideration by us of all points raised on behalf of the claimants for refund in the earlier judgments cited above, and in view of our other decision holding that in matters, involving limitation, the period provided by different provisions of this act for different purposes has an overriding and binding effect qua the authorities acting under this Act; one of them being in the appellants own case reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the party fromapproaching a High Court for appropriate directions under Article 226. We, therefore, do not see any strength being lent to the appellants case, from a reference to this authority, which the learned Counsel did during the course of the arguments. 23. The only points remaining to be considered, which were not earlier raised, are as to whether the provisions of sub-section (3) of section 27 could be pressed into aid by the appellants on the basis of an order of the Revisionary Authority on a revision filed by some other party. Here again, we are constrained to say that the contention put forward by the learned counsel for appellants completely fails to commend to reason because apart from the fact, that a reading of the relevant provision itself which makes it manifest that the person who becomes entitled to a refund automatically, pursuant to a favourable decision in an appeal and revision, is the one who had filed refund application within time and on the same being rejected for any reason, had gone up in appeal or revision; even otherwise there are abundant authorities for the view that the term any person cannot encompass parties who were not directly invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld apply. We feel fortified in this view by judgment of AIR 1983 Karnataka 164 (Revanappa, Petitioner v. Gunderao Others etc. Respondents) laying down that merely because an authority or a body (Motor Accident Claims Tribunal in this case), is entrusted with the judicial powers and functions of the State, and is having some of the attributes of a civil court, by itself, will not be a determining factor to hold that such a body or authority is a Court, in the strict sense of the term, falling within the hierarchy of Courts established under the Constitution. 26. The contention that all central legislation shall apply to the Tribunal cannot thus be accepted particularly when we find the intention of the legislature expressed to the contrary, by way of provisions contained in sub-sections (7) and (8) of section 129-C of the Act, where we find that the Tribunal has been vested with only specified powers conferred by certain provisions of the Code of Civil Procedure, 1908 and Code of Criminal Procedure, 1973; which leads to inescapable inference that application of all other provisions of these Codes, and of course, of all other laws is excluded. Even if the Tribunal could be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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