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TMI Blog1994 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... itation contained in Section 27 cannot be invoked by the authorities to reject the appellant's application it has been observed this decision was rendered under the Central Excises and Salt Act and it pertains to the situation obtaining in 1976. Above all, the decision does not refer to any provision of the Central Excise Act prescribing a period of limitation as is done by Section 27 of the Customs Act. We cannot understand the said decision as saying that even where there is a specific provision prescribing a period of limitation, it can be ignored by invoking Section 72 of the Contract Act. Appeal dismissed. - 2421-22 of 1981 - - - Dated:- 17-2-1994 - B.P. Jeevan Reddy and B.L. Hansaria, JJ. [Order]. - These appeals are prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector met the same fate as also the revision before the Government. 4.In these appeals it is submitted by Shri A.K. Ganguli, learned Counsel for the appellant that the period of six months prescribed under Section 27(1) applies only where the duty is paid in pursuance of an order of assessment. Learned Counsel submitted that in this case, there was no order of assessment as such, and therefore, the period of limitation did never begin to run. The second submission urged by Mr. Ganguli is that by virtue of Section 72 of the Contract [Act] the bar of limitation contained in Section 27 cannot be invoked by the authorities to reject the appellant's application. We are unable to see substance in either of these contentions. 5.Section 45(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer examines the goods, tests them, assesses the proper duty and permits clearance of goods only after the duty and other charges, if any, are paid. In the scheme of the Act, there is no room for contending that any goods will be allowed to be cleared without assessment of the duty, whether provisional or final, as the case may be. 6.Now it may be noticed that the Act does not prescribe any particular form in which the order of assessment is to be made. In the very nature of things, no formal order of assessment can be expected when there is no dispute as to the classification or the rate of duty, no formal order can be expected in such a case, it is more like `across-the-counter' affair. In the present case it may be reiterated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Vallabh Glass Works v. Union of India [1984 (16) E.L.T. 171 (S.C.) = 1984 (3) SCR 180]. In the said decision, it has been observed that where duty has been paid under a mistake within the meaning of Section 17(1)(c) of the Limitation Act, 1963, the excess amount paid becomes refundable by virtue of Section 72 of the Indian Contract Act. Firstly, this decision was rendered under the Central Excises and Salt Act and it pertains to the situation obtaining in 1976. Above all, the decision does not refer to any provision of the Central Excise Act prescribing a period of limitation as is done by Section 27 of the Customs Act. We cannot understand the said decision as saying that even where there is a specific provision prescribing a period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Assistant Collector of Customs, [1987 (30) E.L.T. 641 (S.C.) - 1985 ECR 289 (1)], but it was assailed before this Court. The appeal was withdrawn. This Court observed that the customs authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under provisions of the Customs Act, 1962. If really the payment of duty wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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