ORDER
1. The Collector of Customs (Appeals), Bombay, passed a composite order on 31st July, 1980 and rejected the five appeals preferred by the present appellants against the orders of the Assistant Collector for refund of excess duty of customs. The claims were disallowed as the applications for refund had been made after the expiry of the period of limitation.
2. The appellants felt aggrieved from the order of the Collector and filed a revision petition before the Central Government. The same has been transferred to this Tribunal and we have registered it as an appeal in view of Section. 131-B of the Customs Act, 1962.
3. Shri Dholakia, learned counsel for the appellant, has questioned the findings of the officer passing the original order and also of the Collector who decided the first appeal on two grounds. Firstly, he has contended that the Assistant Collector had acted without jurisdiction, and, secondly, the said officer was not competent to take cognisance of the matter. For these reasons, it is contended, the bar of limitation, could not apply.
4. Shri V.M.K. Nair, the representative of the respondent, has, however, submitted that the order of the Appellate Collector was not illegal as the dispute was only about the excess payment of duty and not about the want of jurisdiction.
5. In order to appreciate the force of the submissions, it seems necessary to reproduce the relevent provisions of Section 27 of the Act which form the main plank of Shri Dholakia’s arguments. The same reads as under : –
“27. Claim for refund of duty. – (1) Any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs, –
(a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year ;
(b) in any other case, before the expiry of six months, from the date of payment of duty :
Provided that the limitation of one year or six months, as the case may be, shall not apply where any duty has been paid under protest.”
6. It is not denied by the learned counsel for the appellants that no protest had been made by his clients when the customs duty was paid on the consignments. Thus a particular right, which had accrued to the appellants under the statute, had not been exercised. Evidently, if the payment had been made under protest, the ground of limitation would not have stood in the way as the cases would have been clearly covered by the proviso cited above.
7. According to the decisions of the Assistant Collector and the Collector, the period of limitation had started running from the date of payment of duty in pursuance of the order of assessment made by the officer of the Customs. This date was 13-12-1978 in three cases, 18-12-1978 in the fourth case and 23-12-1978 in the fifth one. As already pointed out, all the five appeals were disposed of by the Collector in a single order dated 31st July, 1980.
8. Five applications for the refund of the alleged excess duty paid were made on 21st April, 1980. Evidently, all these were beyond six months. The view taken by the authority below is that according to Sub-section (1) of Section 27, such applications could only be made within six months. So all of them were dismissed on the short ground of limitation.
9. While challenging the above decision, it had been contended by the learned. counsel for the appellants. that the view taken by the Assistant Collector and the Collector is not sustainable because the bar of limitation does not apply to the cases in hand. It is submitted that the Assistant Collector had acted without jurisdiction as he was not competent to take cognisah’ce of the matter. The question of jurisdiction had not been raised by the appellants before the Collector of Customs nor has it been raised in the Memorandum of Appeal now before us. This question of limitation is a mixed question of law and fact. We, however, proceed to consider its merits.
10. In answer to a query, the learned counsel for the appellants has conceded that the Assistant Collector had the power to levy Customs duty on the goods imported. He has, however, contended that in the instant case, his jurisdiction was restricted to the value of the goods after deducting the discount, which was to the tune of 80%. Indubitably, it is not a case where the Assistant Collector had no power to take cognisance of the case. He certainly had the power to charge the customs duty. While exercising such powers he had the authority to determine whether or not discount be excluded from the purview of the amount on which the duty was to be levied. It is not a case where the officer concerned had no power ab initio to take cognisance of the matter.
11. The core of the argument is that the Assistant Collector had only the power to levy customs duty on 20% of the gross value as there was a discount of 80% on the price payable and that levying of duty on the entire amount, i.e. without deducting the discount, was not within his competence, and, therefore, such a decision was without jurisdiction. We are afraid that we cannot subscribe to such a view. Its fallacy is demonstrated by the simple fact that the Assistant Collector was the only authority to whom the application for refund could be made. It was for him to find out whether or not the alleged excess payment was refundable under the law. He had the power to consider the request and rightly did so. Before going into the merits, it enjoined upon him to see whether the application had been made within the prescribed period embodied in Section 27. On scrutiny he found that it had not been made within the stipulated period of six months, and, therefore, on that ground alone he dismissed all the five applications for refund. His view was upheld by the Collector of Customs (Appeals) in his impugned order.
12. From the above discussion, it is evident that the Assistant Collector was an officer, who was fully competent to hear the applications and take decisions. He had in no way exceeded the jurisdiction which vested in him. He had the authority to deal with the matter and rightly exercised his power.
13. To stress his arguments, the learned counsel for the appellants has tried to draw help from some court decisions. The first case he has referred to is 1969 (2) ICC 658 (Union of India v. A.V. Namsimhalu). In this case the main point for determination was whether the jurisdiction of a civil court was excluded in view of the Sea Customs Act, 1878. It was held by the Supreme Court that the said Act was a complete code in itself, and, therefore, a civil court had no jurisdiction to entertain a suit for obtaining redress against erroneous exercise of authority. Liability to pay duty of customs is not a common law liability ; it arises by virtue of Sea Customs Act. It was further held that for the remedy of any grievance arising in consequence of enforcement of that liability, machinery has been provided by the Act. Therefore, a civil court has no jurisdiction to entertain a suit. It was, however, further-held in the said case that the exclusion of the jurisdiction of the civil court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative ,or quasi-judicial tribunals.
14. The said Supreme Court decision has no application to the facts of the instant case, where the Assistant Collector had the power to take cognisance of the matter. The Assistant Collector made a decision which was unsuccessfully challenged by the appellants before the Collector. Now the same has been challerged before us in the second appeal. The Assistant Collector was fully empowered to deal with the matter and hold whether or not the Application was within limitation. He has acted within the circumscribed limits and has not exceeded his jurisdiction which could be a cause for grievance. The Supreme Court case cited by the learned counsel for the appellants has no application to the present case and is clearly distinguishable.
15. The other case cited by Shri Dholakia is AIR 1980 SC 1037 (Union of India v. Shiv Shankar Dayal Mills). In this case, market fee had been charged by the officer concerned at the rate of 3% under Haryana Act No. 22 of 1977, when it was actually payable at the rate of 2%. There was no discretion or power with the officer to charge at a higher rate than permissible under the statute Clearly he had exceeded his authority. That is not the position in the case of the appellants in the present case. The Assistant Collector was competent to hold whether or not duty already paid was in excess and should be refunded. He did not find it necessary to go into the merits of the case as the claim for refund could not be entertained, being barred by time. Shiv Shanker Dayal Mills’ case has no application to the -facts of the present case, and, therefore, does not in any way advance the contentions of the learned counsel for the appellants.
16. No other case cited by the learned counsel for the appellants has any relevance to the present case, and, therefore, they need no discussion.
17. Sub-section (1) of Section 27 of the Customs Act prescribes a period of limitation during which an application for refund can be made. The meaning and intention of the said provision is clear and unambiguous and, therefore, ordinary, natural and recognised meanirgs have to be given. The said Sub-section fully empowers the Assistant Collector to entertain applications for the refund of duty paid in excess. He has also the authority to dismiss such applications if they are barred by time. The view taken by the Assistant Collector was confirmed by the Collector in the first appeal.
18. Even now before us, the validity of the decision of the Assistant Collector on the ground of limitation has not been questioned with an eye on the period. The only challenge made is with regard to the jurisdiction of the said officer to take cognisance of the matter. This argument is devoid of any substance.
19. For the above reasons, we find no force in the contentions made by the learned counsel for the appellants. The appeal, therefore, fails and is hereby dismissed.
