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TMI Blog1990 (3) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta Port. The petitioner company duly paid the necessary basic and/or auxiliary duties of customs payable in respect of the said consignments of the said goods before obtaining clearance thereof from the respondent authorities. As the petitioners were unaware of the provisions of law, they paid in respect of the said goods additional duty or countervailing duty under Section 3 of the Customs Tariff Act to the tune of Rs. 25,34,965.03 wrongfully demanded by the respondents. 4. In or about January, 1985, the petition came to know from a circular dated 1st October, 1984 issued by the Central Board of Excise and Customs that no countervailing/additional duty was/is payable on alcohol treating the same as falling under Tariff Item 68 of the erstwhile Central Excise Tariff. On 9th April, 1985, the petitioner applied to the Assistant Collector of Customs, respondent No. 1 for refund of additional or countervailing duty paid by them with regard to the import of goods during March, 1979 to February, 1985 due to mistake. The respondent No. 1 neither processed the said applications nor order refund to be paid to the petitioners on the said applications till date. 5. The respondents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst 3 Bills of Entry, where he has held as follows : "Regarding claims for refund against three Bills of Entry viz. (1) I-519 of 17-10-1984, I-508 of 16-11-1984 and I-612 of 14-2-1985, I find that claims for refund against them were lodged in time in the office of the Asstt. Collector of Customs, Appraising Group I and the products of alcohol imported under them, were not leviable to countervailing duty equal to Central Excise duty under TI 68 CET. I accordingly admit claims for refund of countervailing duty equal to Central Excise duty collected under T.I. 68 CET on these three Bills of Entry and orders that payment of refund against these three Bills of Entry have to be processed forthwith." 8. From the said order it would be evident that products of alcohol imported at the material time were not leviable to countervailing duty equal to Central Excise duty under T.I. No. 68 of CET. It will, therefore, be clear that there were no dispute that no countervailing duty was leviable in this case and accordingly the imposition of the countervailing duty equal to Central Excise duty was unauthorised and illegal. 9. The question whether the respondents were justified in rejecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder an obligation to refund such tax realised illegally. This issue as indicated, was examined by the Central Board of Excise and Customs which by the Circular dated 1st October, 1984 made it quite clear that the prevailing Tariff heading under T.I. 68 of CET did not authorise collection and levy of Central Excise duty on these products. 14. Under Article 265 of the Constitution of India, no tax can be levied or collected except by the authority of law. There cannot be any dispute that the duty was levied in this case by common mistake. In the premises, the respondents cannot deny refund of the duty thus realised on the plea of limitation under Section 27 of the Customs Act, 1962. In a case like this where the initial levy is without jurisdiction and illegal, limitation under the Customs Act will not be applicable. If the limitation as prescribed by general law i.e. Limitation Act is taken into account under Article 123 of the Limitation Act, 1963 in that event time limit for claiming refund of any dues would be three years from the date when the cause of action arose. In other words, cause of action would arise only when the claimants had the knowledge that the levy was illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und it to them or for any reason, it is impracticable to do so. If duty is collected without authority of law, the Department cannot retain the excess duty and the petitioner has a corresponding legal right to recover it. In the instant case the duty was collected without authority of law, the petitioner was entitled to amounts collected by the respondents. 18. If the tax is levied by mistake of law, it is ordinarily the duty of the State, subject to any provision of law relating to such tax, to refund the tax. If refund is not made remedy through Court is open, subject to the same restriction and also to the bar of limitation under Article 123 of the Limitation Act, namely three years. 19. In my view the writ court has jurisdiction to grant relief notwithstanding procedure prescribed by the Act. The order passed by the Departmental authorities are not administrative orders. The orders passed in this case by the Assistant Collector rejecting the claim of the refund are quasi-judicial order and their validity can be challenged in the writ application. When the collection of levy is in violation of Article 265 of the Constitution, it has consistently been held by the Courts that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge came to them only after the Circular dated 1st October, 1984 was issued by the Central Board of Excise and Customs. Immediately, thereafter they claimed refund from the department on 10th April 1985, 22nd May, 23rd May and 24th May, 1985. Accordingly the applications for refund cannot be held to be barred by limitation. 23. Under the Customs Law, one has to clear the goods imported upon payment of duty as levied unless it is known to him that the duty is not exigible. Only when it become known to him that duty is not leviable, he can then clear the goods under protest. The question, therefore, of making any payment under protest did not arise before the said Circular dated 1st October, 1984 was issued. Parties proceeded on the footing that such duty was payable. When the impost is illegal, it is immaterial whether payment pursuant to such impost was made under protest or not. 24. The view I have taken is supported by several decisions viz. Ruby Mills Anr. v. Union of India Ors. reported in 1986 (25) E.L.T. 610 (Bombay); Industrial Cables (India) Ltd. v. Union of India Ors. reported in 1985 (19) E.L.T. 351 (Bombay); Autometres Ltd. Anr. v. Union of India Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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