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TMI Blog2004 (1) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... te, it cannot be said that the application of the petitioner was barred by limitation in view of Section 27(4) of the Act. It is an admitted position that the petitioner was likely to receive 69 bales but in fact only 51 bales were delivered to the petitioner. Therefore, the goods for which the petitioner had placed an order did not arrive in toto and only 51 bales crossed the customs barriers. Therefore, no question of any custom levy arises insofar as 18 bales are concerned. For these 18 bales, the petitioner's case does not come within the four corners of the Customs Act at all, as no import has taken place for 18 bales for which amount was paid in advance on the assumption that goods will be received. As no import actually took place, the Customs Authorities cannot refuse refund of the money paid by the petitioner insofar as the excess amount is concerned on the ground of limitation, as envisaged u/s 27 of the Act. Following the decision the of Supreme Court in the case of Salonah Tea Company Ltd. etc. v. Superintendent of Taxes [ 1987 (12) TMI 3 - SUPREME COURT] , the Court is required to decide that when the petitioner deposited the amount with the respondent in anticipat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner submitted an application for refund of the excess amount on 9-9-1974. This application was submitted in respect of 18 bales, which he did not receive and for which "short landing certificate" was issued by the appropriate authority. There is no dispute with regard to the aforesaid aspects. 3.The application of the petitioner came to be rejected on the ground that the claim for refund was received in the Customs House on 16-9-1974 while the duty was paid on 19-1-1974. In view of this, it was considered that the claim was made after the expiry of the time limit of six months prescribed in Section 27(4) of the Customs Act, 1962 (hereinafter referred to as "the Act"), and, the claim was rejected as being time barred. The petitioner failed at all stages and hence the writ petition. 4.It is the contention of the petitioner that initially when he deposited money, it was not "duty". So far as "duty" is concerned, the same is defined in Section 2(15) of the Act, which reads as under :- "duty" means a duty of customs leviable under this Act." 5.Section 12 of the Act makes it very clear that the duty of customs can be levied on the goods imported into India or exported from India. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent to return the balance amount to the petitioner. The cause of action for demanding customs duty would arise only after 51 bales were imported into India and not before that. Our attention was drawn to Annexure-A1-3 (at page 13). Note No. 3 thereof reads as under :- "Complete documentary evidence which has a bearing on the claim should be furnished in the first instance, failing which the claim is likely to be summarily rejected." 10.Thus with a view to see that the claim is not summarily rejected, the petitioner was required to furnish "short landing certificate", which is dated 11-6-1974. Obviously, before that date, the petitioner could not have submitted his application. Therefore, considering this date, it cannot be said that the application of the petitioner was barred by limitation in view of Section 27(4) of the Act. 11.Considering this case from another angle, when in anticipation of payment of duty on arrival of goods for home consumption the amount was deposited, then in that case, it cannot be said that the amount was paid in view of the assessment made by the Competent Authority for customs duty, nor such deposit can be regarded as "duty" in view of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 realized from citizens without the authority of law. It is further pointed out that normally in a case where tax or money has been realized without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner. It is true that in some cases the period of three years is normally taken as a period beyond which the Court should not grant relief but that is not an inflexible rule. The Court might consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. Where delay is more than that period, it will be almost always be proper for the Court to hold that it is unreasonable. 15.In the aforesaid case, the Court held as under :- "Under Article 113 of the Limitation Act, 1963 the limitation the period of three years from the date the right to sue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court cannot give direction for refund. 19.In the case of Kirloskar Pneumatic Co. Ltd. (supra) the duty as demanded by the authorities was paid and the goods were cleared. The application seeking refund was rejected by the authorities. Thereafter, in the year 1987, the assessee filed a writ petition seeking an appropriate writ for refund of excess customs duty levied upon the goods imported and collected. Direction was given to the authorities to dispose of the refund claim on merits and not to reject the refund application on the ground of limitation. In that case, there was a dispute between the respondent, namely, Kirloskar Pneumatic Co. Ltd. (supra) and the Customs Authorities with respect to classification of the goods. The "duty" that was demanded by the authorities were paid and the goods were cleared. Thereafter, the refund application was filed. Reading the judgment, it is very clear that there was a dispute between the assessee and the Revenue Authorities with respect to classification of the goods after the assessment was made and that dispute was raised after the goods were cleared on payment of duty. Thus, in that case receipt of goods was not disputed, the amount wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Act. It would be appropriated towards duty only on the importation of the goods. Only 59 bales were imported. Hence, appropriation towards duty could be done only in respect of these 51 bales. The balance amount cannot be regarded as payment towards "duty" or a payment under the Act. 21.In Shiv Shankar Dal Mills etc. v. State of Haryana and Others, etc. 1980 (1) SCR 1170, Krishna Iyer, J. observed that where public bodies under colour of public laws recover people's money, later discovered to be erroneous levies, the dharma of the situation admits of no equivocation. There was no law of limitation especially for public bodies on the virtue of returning what was wrongly recovered to whom it belongs. In our jurisprudence it is not palatable to turn down the prayer for high prerogative writs on the negative plea of alternative remedy, since the root principle of law married to justice, is ubi jus ibi remedium. His Lordship observed as follows : "Since the root principle of law married to justice, is ubi jus ibi remedium. Long ago Dicey wrote : 'The law ubi jus ibi remedium, becomes from this point of view something more important than a mere tautological proposition. In i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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