ORDER
Harish Chander, Member (J)
1. M/s. Jay Shree Tea & Industries Ltd. has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Calcutta. The appellants had lodged a refund claim against Bill of Entry No. 1-644 dated 16-4-1981. The Assistant Collector had rejected the refund claim and the Collector of Customs (Appeals) had confirmed the findings of the Assistant Collector on the ground that the refund claim was time barred under Section 27 of the Customs Act, 1962. Being aggrieved from the aforesaid order the appellants have come up for an appeal to this Tribunal.
2. Shri D.N. Mehta, learned advocate has appeared on behalf of the appellants. He has stated that the appellants had applied for the refund on the basis of the information received from the Assistant Collector of Customs, for Appraisement Gr. V., Customs House, Calcutta vide their letter F. No. IAD R/M-1017/81 dated 12/15-10-1981. This letter was received by the appellants on 20-10-1981 and the appellants are entitled to refund of Rs. 5,232.39. In support of this argument he has referred to a judgment of the Western Regional Bench, Bombay of this Tribunal in the case of J.K. Synthetics Limited v. Collector of Customs, Bombay, reported in 1988 (11) ETR 392 where the Tribunal had held that:
“If the department informed the applicants that they had collected excess amount and that they should make an application for refund, there is nothing in the Customs Act which prohibits the department from making suo moto refund of the duty erroneously collected and therefore for such action the limitation prescribed in Section 27 is not applicable. Since the duty had been paid under protest in this case, the authorities were not correct to hold the claim as barred by time. As this aspect of the matter had not been considered, Tribunal remanded the matter for afresh consideration.”
Shri Mehta has argued that in view of the judgment the appeal may be allowed:
3. Shri D.K. Saha, learned JDR who has appeared on behalf of the respondent opposes the acceptance of the appeal and has argued that the claim of refund was hit by limitation in terms of Section 27 of the Customs Act, 1962 as the same was filed after the expiry of six months. The duty was paid on 16-4-1981 and the judgment of Supreme Court in the case of Miles India Limited was not cited before the Western Regional Bench. He has pleaded for the rejection of the appeal.
4. We have heard both the sides and have gone through the facts and circumstances of the case. Undoubtedly, the Assistant Collector had intimated to the appellants to make a claim of refund. The relevant extracts from the Assistant Collector’s letter dated 12/15-10-1981 is reproduced below :-
“On scrutiny of the above bill of entry it is observed that the goods are correctly chargeable to Customs duty under heading 84.28 CTA, 1975 @ 40% + 5% Auxiliary duty + C.V. 8%. The Excess levy amounting to Rs. 5,232.39 is, therefore, involved. You may, however, lodge the refund claim, if so desire, with A.R.S. within the stipulated period.”
On the basis of this letter the appellants had lodged the refund claim and the appellants’ case is fully covered by the judgment of the Western Regional Bench, Bombay as cited by the learned advocate in the case of J.K. Synthetics Limited. The ratio of the judgment have already been incorporated in the foregoing para relating to the arguments of the learned advocate. We have perused the judgment of the Western Regional Bench, Bombay. The matter before the Western Regional Bench, Bombay was not represented by anybody on behalf of the appellants and the JDR relied on the judgment of Miles India Limited v. Assistant Collector of Customs, reported in 1987 (30) ELT 641 (SC) was not brought to the notice of the Bench. The Hon’ble Supreme Court in the case of Doaba Cooperative Sugar Mills, reported in 1988 (37) ELT 478 (SC), has held that the authorities functioning under the Act are bound by the provision of the Act. If the proceedings are taken under the Act by the Department, the provisions of limitation, prescribed in the Act will prevail. The Hon’ble Supreme Court dealt the issue of limitation at length. In view of the above discussions, we are of the view that the provision of Section 27 of the Customs Act, 1962 are mandatory. We are not inclined to agree with the judgment of the Western Regional Bench, Bombay cited by the learned advocate. Accordingly, we hold that the refund claim was hit by limitation. The appeal is dismissed.