9911796707
TMI Blog1996 (5) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... reatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law. When we expressed this view during the hearing Mr. Hidayatullah requested that in such a case the matter be remitted to the High Court and the High Court be left free to dispose of the writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The duty as demanded by the authorities was paid by the respondent and the goods cleared. Thereafter, the respondent filed the refund application. The appellant says that the respondent preferred an appeal which was rejected by the Appellate Authority and that instead of filing the further appeal, the respondent approached the Bombay High Court. The respondent disputes this statement. He says that he did not file any appeal but approached the High Court straight away. Be that as it may. The prayer in the writ petition was to issue an appropriate writ, order and direction to the Customs Authorities to refund the excess customs duty levied upon the goods imported by the respondent and collected from it. The respondent also claimed interest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Asstt. Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions. Sub-section (4) of unamended Section 27 read as follows : Save as provided in section 26, no claim for refund of"27(4) any duty shall be entertained except in accordance with the provisions of this section." Sub-section (3) of amended Section 27 reads thus : Notwithstanding anything to the contrary contained in any"27(3) judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the regulation made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2)". 10.According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 226 or the power of a civil court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law. When we expressed this view during the hearing Mr. Hidayatullah requested that in such a case the matter be remitted to the High Court and the High Court be left free to dispose of the writ petition according to law. 11.The appeal is accordingly allowed, the order under appeal is set aside in its entirety and the matter is remitted to the High Court for disposal in accordance with law. We reiterate that we express no opinion upon the maintainability or the merits of the writ petition. That is for the High Court to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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