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TMI Blog1979 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... under Item 87 of the Tariff at 100 per cent. ad valorem. After payment of the said duty and after clearing the consignment. the appellant came to know that the consignment of stainless steel imported by it is entitled to the benefit of Notification No. 118-Customs, dated 20-8-1965, as amended by Notification No. 138-Customs, dated 25-8-1965, which reduces the import duty to 10 per cent. ad valorem in cases of import of stainless steel strips of 250 millimeters of width or more. On the ground that the stainless steel imported by the petitioner was stainless steel strips of 1,000 millimeters width, the appellant on 29-9-1972, claimed refund of 90 per cent. of the duty as excess duty collected from it. The refund application filed by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge was that Sec. 27(1) of the Customs Act having prescribed a time limit for preferring a claim for refund and the appellant not having made the claim within the prescribed time limit and it not having paid the import duty under protest, its claim for refund has rightly been rejected by the authorities constituted under the Act. The said view of the learned Judge has been challenged in this writ appeal. 4. The learned counsel for the appellant contends that the appellant's claim cannot be said to be time barred under Sec. 27(1), that Sec. 27(1) will apply only to a case where there is a valid assessment but not to a case where the assessment itself will be illegal and without jurisdiction, that in this case, the goods imported by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be made within three months from the date of the payment. It was pointed out by the Supreme Court that there was a legal obligation on the part of the Government to return the excess duty if really the said excess duty was not payable by the party under the provisions of the Sea Customs Act, and a corresponding legal right in the party to recover it, and such a right cannot be defeated on the basis of the limitation prescribed in Sec. 40. 6. The learned counsel also refers to a decision of Koshal J. as he then was in Premraj and Ganapatraj and Co. v. Asst. Collector of Customs - 1977 E.L.T. (J 166) = 1977-2 MLJ 302. In that case, the scope of Sec. 27 of the Customs Act came up for consideration. That was also a case of the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution which gives a mandate that no tax shall be levied or collected except by authority of law, that there being admittedly an excess collection of import duty, the party who has paid the excess duty is entitled to get a refund of the same and that though the authorities cannot entertain a revision application under Sec. 27 of the Customs Act, beyond a period of six months from the date of payment, that will not inhibit the court from granting the necessary relief by way of Mandamus directing the authorities to refund the duty which was collected without the authority of law. Having regard to the said decision of the Bench, with which we respectfully agree, we have to hold that even if the appellant's claim for refund cannot be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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