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TMI Blog2004 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... salonah Tea Company Ltd. v. Superintendent of Taxes, [ 1987 (12) TMI 3 - SUPREME COURT] the Supreme Court held normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution of India, the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner. I have already indicated that the question of nullity being void in nature, no law prescribed as yet to restrain any void claim unlike the voidable claim. Therefore, the CEGAT is entitled to go into the question of unjust enrichment ignoring the question of the statutory limitation. Incidentally, it is to be remembered that both the claimant and the authority are either instrument of the Government or pure Governmental authority. It is not desirable that this type of dispute should not be persisted amongst themselves. It is further to be remembered that rejection, as made, by the original authority relates to making application beyond the period of six months without ascertainment of the factum that whether the period of six months is appropriate in the case of a Government instrumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Customs Tariff Act. The ascertainment of Customs Tariff is dependable upon the quantity, nature, character and material composition. By a purchase order dated 7th February, 1990 MMTC imported 30 pcs. of Hot Rolled Plates from its Belgium Exporter and shipped it to a vessel under Bill of Lading No. Z-02, dated 6th April, 1990. The petitioner company purchased said plates from MMTC on High Seas basis. The Customs Authorities realised Rs. 62,57,236/- on account of duty and Rs. 27,89,527/- on account of interest totalling to Rs. 90,46,763/-. The said amount by mistake was considered H.R. plates as alloy steel plates as per tariff manual without checking the declaration given by the importer. Such H.R. plates are Non-Alloy Steel Plates i.e. Mild Steel Plates thereby rate of Customs Duty is much lesser than the realised amount. The Assistant Collector of Customs (Appraising Refund Section) by an order dated 5th January, 1995 held that since the importer's application for refund has been received by the office after the expiry of six months from the date of payment of Duty, the claim is rejected as time-barred under Section 27 of the Customs Act, 1962. Section 27 of the Customs Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities are proceeding under the Act it will proceed under the provisions laid down therein. Therefore, the important feature for the purpose of coming to conclusion by the authority as well as the appellate authority is whether the amount recovered without the actual provision of the tariff schedule of the Customs Authority or not. Such question will prevail over and above the question of making an application within the prescribed period as given under the law. Article 265 of the Constitution of India prescribes the taxes cannot be imposed save by authority of law. No tax shall be levied or collected except by authority of law. Even if I go by Section 23 of the Indian Contract Act, it says that the consideration or object of an agreement in law is lawful unless it is forbidden by law or is of such a nature, if permited, it would defeat the provisions of any law. In such of these cases, the consideration and object of an agreement is said to be unlawful. Even agreement of which the object or consideration is unlawful is void. In the legal battle, according to me, one has to proceed step by step to achieve the goal. Such steps are provided in the law. The law is to be trul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as soon as they are due in accordance with law. Equally as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because no state has the right to receive or to retain taxes or monies realised from citizens without the authority of law. In this case indisputably it appears that tax was collected without the authority of law. Indeed the appellant had to pay the tax in view of the notices which were without jurisdiction. In the previous it is manifest that the respondent had no authority to retain the money collected without the authority of law and as such was liable to refund. 6.The respondent authorities, on the other hand, argued that writ Court is not proper forum for adjudication of classification dispute which necessarily factual investigation as to the technical, chemical composition of the goods involved, their uses and how they are commercially sold and dealt with. They further contended that the jurisdiction under Article 226 is indeed extraordinary. The Court does not normally interfere if adequate alternative remedies as available. 7.In a reply thereto, it has been conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that rejection, as made, by the original authority relates to making application beyond the period of six months without ascertainment of the factum that whether the period of six months is appropriate in the case of a Government instrumentality or one year. However, if the application, as made by the petitioner company even beyond the period of one year such principle may not be applicable. The authority concerned did not consider the same apparently as available in the record. Therefore, even the rejection as made by the authority and the appellate authority on that score cannot be said to be free from doubt leaving aside the part of applicability of general principles of Limitation. If I follow the procedure correctly in case of refund, the Court under Article 226 of the Constitution of India, has power to direct refund unless there has been avoidable laches and in doing so the Supreme Court has given a guideline not to follow the inflexible rule particularly when the prayer is made within the three years period which are normally for the purpose of due consideration of the cases. Here admitted position is that the application for refund was made within the period of three year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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