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TMI Blog1984 (3) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... r the same item of the tariff i.e. 25.01/32(3) of the Customs Tariff as Battery Grade Manganese Dioxide . As per the appellants these two articles are two totally different materials one being an ore and the other being a chemical compound and neither of them deserved to fall under minerals grade. Price-wise also E.M.D. is about 10 to 15 times more costly than Manganese Ore and commercially these two items are recognised as two different commodities. Electrolytic Manganese Dioxide (E.M.D.) is a electrochemically processed chemical compound. Manganese Ore, on the other hand, is unprocessed mined-material. As per the appellants, earlier, before the C.C.C.N. was adopted, there were separate tariff items for assessing imported Manganese Ore which was classified under metallic ores, all sorts, and E.M.D. which was placed under chemicals. The C.C.C.N. has itself separate heading even now for Manganese Ore (Chapter 26) and E.M.D. (Chapter 28.22). 3. Aggrieved by the action of the assessing authority the appellants filed refund claims before the Assistant Collector, Customs (Appraising Refund Section) Calcutta narrating the entire facts but he summarily rejected the appellants claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are paid under mistake. The application of the petitioner should have been regarded as a sought representation, not covered by Rules 11 or 173-J and the respondents ought to have applied the law laid down in Voltas case and passed an administrative order directing the refund of the excise duty realised by them in excess of what was permissible under the Act. 8. As per the arguments of the learned counsel of the appellants, a direction can be given by this Tribunal to the authority below to refund the excess amount recovered from the appellants regardless of the period of limitation. There is no need of filing any application for claiming refund in such cases as has been observed by the Hon ble Judge of the Delhi High Court. 9. He pointed out that in none of the decisions of the Tribunal on the point of limitation, this aspect of the matter was specifically dealt with. No period of limitation is applicable in such cases where the duty was collected in excess of what was legally due. Under Article 265 of the Constitution, the Government is entitled to levy and collect duty only by authority of law and, therefore, what was legally not due to them cannot be said to have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 27 are mandatory in nature and therefore, they go to the root of the matter and hence, the authority below has rightly chosen to decide this matter of limitation before going into the merits of the main matter. There is no illegality in deciding an issue as a preliminary issue if that issue goes to the root of the matter and the case can be disposed of finally by the decision on that preliminary issue. The question of limitation goes to the root of the matter and the appellants cannot escape the mandatory provisions of Section 27 of the Customs Act, 1962 in the garb of getting the matter decided on merits of the case. When the authority below has not given any findings on the merits of the case, and only found the case barred by time under Section 27 of the Customs Act, 1962, this Tribunal, who is an appellate authority, cannot decided the matter on merits of the case. We are, therefore, unable to accede to this contention of the learned counsel of the appellants. 13. On the point whether the authority below was justified in rejecting the appeals of the appellants on the ground of limitation, we have to look into the provisions of Section 27 of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an administrative order directing the refund of excise duty realised by them in excess of what was permissible under the Act. These observations of a Single Judge of Delhi High Court in this case do not help the appellants. These are not the findings of the Hon ble Judge which could have the force of a Judgment in rem. These observations can at the most be said to be exhortation (pious desires) of the Hon ble Judge in that particular case to the good sense of Government. It cannot be cited as an authority applicable in the present case. Moreover, a perusal of the entire judgment shows that nowhere his Lordship held that where collection of an amount was without authority of law or payment was made under a mistake of law and the refund claim application was filed under the statutory provisions, the provisions of limitation contained under Section 27 of the Act would not be applicable. The special Bench of this Tribunal in the case M/s. Laboratories Vifor (India) Pvt. Ltd. v. Collector of Customs, Bombay (Supra) has also taken note of the observations of the Delhi High Court in the case. of Vazir Sultan Tobacco Co. Ltd. (Supra) and it was observed As under :- The effect of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res Ltd. v. Assistant Collector of Customs (1981 E.L.T. 169) Hon ble Judges of the Calcutta High Court following the decisions of the Hon ble Supreme Court in M/s. Burmah Shell Construction Co. v. State of Orissa (AIR 1962 S.C. 1320) held that the Customs Act is a self-contained Act and the authorities acting thereunder are bound by the provisions thereof and the parties seeking any relief from these authorities cannot insist that the authorities should look to the general provisions of law and ignore the limitations imposed upon them by the particular Statute. Once a party places reliance upon a statutory right, and makes a claim with reference to a particular Statute (as is the case before us), then it is not open to that party to urge that the restrictions imposed by such Statute on the exercise of that right as to the entertainability of the claim are to be ignored. In almost all the cases cited before us, it has been laid down that statutory authorities are within their rights in not admitting claims filed beyond time wherein the refunds were ordered to be made by the High Courts in exercise of writ jurisdiction by invoking the principles envisaged under Section 72 of the Cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per : M. Gouri Shankar Murthy member (J)] 19. I agree. I would, however, like to add the following- (a) It is not every levy or collection of duty in excess of, what, according to the assessee, is the permissible limit, that becomes, straightaway, an illegal exaction and, hence, refundable. (b) It is only if the levy was altogether (i) without jurisdiction ab initio, or (ii) in excess of jurisdiction, that it becomes illegal. (c) A levy is without jurisdiction, ab initio, if (i) any of the relevant provisions of the enactment, in question, is ultra vires, or declared to be ultra vires, or (ii) an error as to a collateral fact was committed whereby jurisdiction was assumed, or (iii) the levy exceeds the limit imposed in the Constitution itself. (d) It is in excess of jurisdiction if the assessment is (i) incompetent i.e. the assessing officer is not duly authorised to make the assessment, or (ii) in disregard of the conditions laid down by the statute itself for the assumption and exercise of jurisdiction, or (iii) in bad faith or in violation of the principles of natural justice. As succintly observed by Lord Reid in Anisminic Ltd. v. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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