9911796707
TMI Blog1998 (7) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Tariff Entry No. 6807.00. Besides the Customs duty payable on the imports, the petitioner also paid countervailing duty amounting to Rs. 2,14,875/-. This payment was made pursuant to five different orders of assessment made by the Customs Authority on the arrival of the imported material on the Indian shores. No objection it is significant was at any stage raised by the petitioner either as to its liability to pay the said duty or the extent thereof. All the same, more than three years after making the payment the petitioner made an application on 5th of March, 1990, claiming a refund of the amount paid by it. The petitioner's case was that the countervailing duty paid by its was not lawfully recoverable having regard to two exemptions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise v. Kashyappa Engineering Metallurgicals (P) Ltd. - 1990 (45) E.L.T. 345. 4. Counsel appearing for the Respondents on the other hand contended that the question whether a refund would be claimed de hors the provision of Section 27 or beyond the period of limitation prescribed for the purpose was no longer res integra having been authoritatively answered by the Constitution Bench decision of the Supreme Court in Mafatlal Industries v. Union of India - 1997 (89) E.L.T. 247 (S.C.) = 1995 (3) SCC. Supp. 316 (sic.). Reliance was also placed upon the decision of the Supreme Court in Union of India Another v. Kirloskar Pneumatic C. Ltd., (1996) 4 SCC 453; and a Division Bench decision of this court in M/s. Mascot Agro-Chem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Laws (Amendment) Act, 1991 or thereafter by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or mis-applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under `the authority of law' within the meaning of the said article." It follows that if a request for refund is not made by the person affected within the period prescribed under Section 27 his remedy to claim return of the amount even when the same may not have been recoverable from him is lost. The failure to claim refund within the period stipulated has the effect of legitimising what may have been in the inception either irregular or illegitimate. Section 27 of the Act having been declared to be a valid piece of legislation within the meaning of Article 265 of the Constitution, the result is that the recovery and reten ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
