ORDER
S. Duggal, Member (J)
1. The short question, falling for determination in this appeal, filed by Miles India Ltd., Baroda (Gujarat) is as to whether the order passed by firstly; the Assistant Collector of Customs and then by the Appellate Collector of Customs, Bombay, on appeal being filed before him, whereby they declined to entertain the claim for refund, filed by the appellant on the same being barred by time, as having been made after expiry of the period of six months, stipulated u/s 27 of the Customs Act, 1962 are legally sustainable or not.
2. Brief facts, as revealed by the grounds set out in the revision petition, as it was filed before the Central Government under the provisions of Section 131 of the Customs Act (as then applicable) and now received by this Tribunal and to be disposed of as such are, that the appellants imported an article described as ; Indian Chemical Reagent Strips from abroad and that there are repetitive imports and it has been their persistent contention that these are to be classified under tariff item 90.17/18 of Indian Customs Tariff on the ground that the same were diagnostic medical tools. It is further revealed that they contended alternatively that if the aforesaid goods were treated to be not falling under tariff item No. 90.17/18 then they ought to be classified under tariff item No. 38.10/19 as “chemicals not elsewhere specified”.
3. However, the Custom authorities throughout assessed these goods under tariff item No. 48.01/21 holding it to be falling under the heading “Papers and paper board all sorts”. The appellants pleaded to have been paying custom duty from time to time on the imports made by them, as assessed by the custom authorities. It goes without saying, as it is no where pleaded, that these payments were made without protest.
4. It is now stated that while this controversy was going on, the appellants acquired knowledge of a Government Notification being Notification No. 198/Cus./l, dated 17-9-77 which reads as follows :-
“Imported filter paper and base filter paper required for
the manufacture of impregnated filter paper falling under sub-heading No. (1) of Heading No. 48.01/21 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) are exempted from the whole of the Additional Duty leviable thereon under Section 3 of the said Act.”
5. The appellants now contend that by virtue of this notification, the goods were not liable to be subjected to any customs duty and they consequently lodged a refund claim with the Custom authorities for the entire period falling between 10-2-78 to 10-8-80, totalling to Rs. 5,86,465.16 Ps, as detailed in exhibit ‘B’ on page 13 of the file. It is contended that while submitting its refund claim, the appellants had clearly mentioned that this was being submitted without prejudice to their rights or contentions, particularly that the goods imported by them were to be classified under item No. 90.17/18 of the Customs Tariff and that the refund claim was being filed for the preceding three years on the ground that the additonal customs duty was paid by them under a mistake of law and accordingly the law of limitation under the Limitation Act, 1963 ought to apply in this case, and that they had further specified that they were claiming eligibility of the benefit of the exemption notification for the period 10-2-78 to 10-8-80 and intend doing so far all future imports also, but this could not be treated that they were giving up their original contention that the imported goods were classifiable under item No. 90.17/18.
6. The Assistant Collector of Customs, by his order dated 30-3-81 rejected the application for refund as being time barred, mentioning that refund claim was received, vide annexure `1′ with his order, on 16-2-81 i.e. after the expiry of six months of the time of payment and as such was beyond the time limit stipulated by Section 27 of the Customs Act, 1962. The appeal, filed to the Appellate Collector of Customs was also rejected on the same ground, by his order dated 31-8-81 by reference to the authority of M/s Inchek Tyres Ltd. v. Assistant Collector of Customs and Ors., holding that the duty having not been paid under protest the time limit of six months would apply and rejecting the contention of the party that the duty being not leviable, the citizen had a right to recover such amount irrespective of any time limit imposed by Section 27 of the Customs Act, because of Article 265 of the Constitution, holding that this contention was not tenable before the Departmental authorities and further adding that, “equity belongs to the vigilant and not to the indolent”.
7. The appellant has assailed these orders in the present appeal on the same contentions, as reproduced in the order of the Appellate Collector, namely; that the duty had been paid in ignorance as the appellant did not know about the existence of Government Notification No. 198/Cus/l, dated 17-9-77, exempting such articles from the additional customs duty and that it has to be deemed to be duty collected without the authority of law and that the lower customs authorities have gone wrong in rejecting the claim of the appellant by applying the time limit set in Sec. 27 of the Customs Act. It is further contended that the refund claim covered a period of three years, preceding the date it was made, and since it was a payment made under mistake of law, the normal law of limitation would be attracted and the period of three years, as contemplated by Limitation Act, 1963 ought to apply. The orders are impugned on the ground that they demonstrate non-application of mind on the part of the authorities concerned, inasmuch as in spite of appellant’s plea that they had discovered the existence of the said notification only recently and that they were eligible to claim refund for a period extending upto three years, the custom authorities rejected their claim as being barred by time, and that merely because the refund claim was filed on 16-2-81 would not render the same liable to rejection, inasmuch as the duty which had been illegally recovered, had in any case to be refunded to the appellants.
8. They had also made reference to certain cases in support of their plea that any levy which is not authorised by law has to be deemed to be illegally recovered and for that principles of Section 72 of the Indian Contract Act would apply and consequently, the normal period of three years, as contemplated by the Limitation Act would apply. They also sought to distinguish their case from that of the case covered by the Calcutta High Court entitled Inchek Tyres Ltd. v. Assistant Collector of Customs and Ors.; 1979 Cencus 360 D=1981 ELT 169, on the plea that theirs was a case of illegal recovery, as having been made under mistake of law, and it was not a case of straightaway refund nor they could be said to have been negligent or indolent. They submitted in the end that their claim for refund had been wrongly rejected as barred by time, although they added that they still press their contention that the goods imported by them would fall under customs tariff item No. 90.17/18 to be categorised as diagnostic medical tools and thus claim refund with reference to the exemption notification, issued by Government of India.
9. On the appeal being taken up for hearing Shri D.B. Engineer of M/s Crawford Bayley & Company Advocates, High Court, Bombay appeared for the appellant and argued the matter at length, building his arguments primarily on the contention that by virtue of Government of India Notification, issued on 17-9-77, exempting such goods from entire additional custom duty any levy thereof was illegal as being not authorised by law and that in view of the mandate contained in Article 265 of the Constitution, that no tax, “not authorised by law” could be recovered by the State and that it was a case in fact of mutual mistake because customs authorities also appeared to be unaware of the existence of the notification, otherwise they would not have charged additional customs duty nor the appellant would have paid had they been in the know of this notification, and that the application for refund could not be treated to have been made with reference to the provisions of Section 27 of the Customs Act but under general rights and for that purpose the restrictions imposed by Section 27 in the matter of time limit could not be invoked by the customs authorities. He asserted that the appellant had not even applied by reference to Section 27 of the Customs Act. Although he conceded that the application was in form ‘A’ as prescribed by the customs authorities, which also contained a foot note referring to the time limit set out by Section 27 of the Customs Act but contended that this was so, because the Department required the applications to be made in the performa, which according to him was not a statutory one but the appellants had made their position clear in the covering letter, pointing that the amounts had been paid under mistake, and were recoverable with reference to their general rights, and as such general period of limitation would apply.
10. He addressed his argument elaborately quoting a number of judgments in support of the arguments canvassed by him. Ld. Departmental Representative Shri M. Chatterjee gave reply to these arguments by making emphatic reference to the observations made in the Calcutta High Court authority reported as Inchek Tyres Ltd. v. Assistant Collector of Customs and Ors.; 1979 Cencus 360D=198l ELT 169 and contended that Customs Act was a self-contained Act and the authorities acting thereunder were bound by the provisions thereof and the parties also seeking any relief from these authorities could not insist that the authorities look to general provision of law and ignore the limitation imposed on them by the particular Statute. He thus defended the impugned orders of both the lower authorities by urging that Section 27 was the only provision whereunder application for refuud could be made to the customs authorities and the party was bound by the restrictions imposed by this Section as to limit of time and that the same has been correspondingly imposed by the Legislature on the Department also, as Section 28 would indicate, and that the appellant’s contention that general law of limitation would apply, was not sustainable.
11. We have given our very careful thought to the matter, because of the issues involved and have given our earnest consideration to all the points urged by the Ld. Counsel for the appellant. We have also gone through the large number of authorities cited by Ld. Counsel, but we find that none of them seem to fortify’ the stand taken up by the appellant.
12. It is pertinent to note that the claim for refund was made by the appellant in this case before the Assistant Collector of Customs and on rejection of the same,’they went in appeal to the Appellate Collector which is a machinery provided by the Customs Act. It is thus manifest that the claim for refund was made by the appellant Company with reference to the provisions of, and by resorting to the machinery provided by the Customs Act. As such, it does not seem to lie in their mouth to say that their claim for refund ought not to be disposed of by reference to the time limit set by Section 27(1) of the Customs Act, but by applying general law of limitation.
13. It is a settled proposition of law that once a party places reliance upon a Statutory right and makes a claim with reference to a particular Statute, then it is not open to that party to urge that the restrictions imposed by such statute on the exercise of that right as to the entertainability of the claim, are to be ignored. This proposition was enunciated in very unequivocal terms by their Lordships of the Supreme Court, in a case reported as M/s Burmah Construction Co. v. Slate of Orisxa; AIR 1962-SC 1320. This case finds reference in the authority of the Calcutta High Court relied upon by the learned Departmental Representative; namely, Inchek Tyres Ltd. v. Assistant Collector of Customs and Ors.; 1979 Cencus-360D.
14. In the case before the Supreme Court which relates to the interpretation of the provisions of Orissa Sales Tax Act, and Section 14 thereof, which lays down identical restrictions of time limit, to the claim for refund, although it was conceded that the amount of Sales-Tax which had been collected from the appellant therein was not leviable and could be thus described as tax “improperly or illegally collected”, but it was held that once the party had come up for enforcement of the liability of the Government by reference to Sales-tax Act, the right could only be allowed subject to the restrictions which have been imposed by the provisions thereof. This was in spite of the fact, that the party had invoked Writ Jurisdiction of the High Court but even then their Lordships of the Supreme Court upheld the view expressed by the High Court to the effect that the right could not be recognised without taking into account the restrictions imposed by the Legislature, so far as that particular piece of legislation by reference to which a party laid a claim, was concerned. It was thus held that although the parly could enforce the right of recovery by recourse to “other appropriate proceedings”, but so long as the claim was by reference to provisions of the particular Statute, than the time limit imposed by the said Statute could not be over-looked or by-passed.
15. It was with reference to this Supreme Court authority that the Calcutta High Court in the Inchek Tyres Ltd. case felt compelled to decline the prayer of the appellant therein, for issue of Writ, in the nature of Certiorari against the Customs authorities to order refund, which claim had been rejected by the said Authorities because of the time bar provided by Section 27 of the Customs Act and, this was also a case where the excess amount was pleaded to have been paid in ignorance of existence of a notification.
16. Same principle of law was highlighted by the Supreme Court in AIR 1975 SC 1039 in a case entitled Commissioner of Sales Tax, U.P. v. M/s Parson Tools and Plants, Kanpur, that
“Where the legislature clearly declares its intent in the
scheme and language of the statute it is the duty of the Court to give effect to the same Without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver, more so if the statute is a taxing statute.”
17. It was further observed in this authority that if the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserves of the Legislature. This authority also stressed that the Appellate authority, as appointed under the provisions of U.P. Sates Tax Act, was not “Court” and that provisions of Section 14(2) of the Limitatation Act could not be invoked in proceedings before such an Appellate authority or Tribunal.
18. This authority is thus a complete answer to the submissions made by the Ld. Counsel for the appellant, by reference to some authorities, urging that in view of those authorities providing relief to the concerned parties ordering refund of the amounts claimed in spite of concerned authorities under particular Act having declined to give relief by way of refund on application made to them, because of the time limits imposed by the particular statute, because it is abundantly clear from the observations reproduced above, that unless the particular Act under consideration makes provision for any type of condonation or extension of time on cause being shown or otherwise, it is not open particularly to a Tribunal, functioning within the confines of the same Act, to induct provisions of general law of Limitation into the statute and relax the time limit provided therein.
19. All the authorities, cited by the learned counsel for the appellant, recognise and even tacitly approve the principle that so far as statutory authorities are concerned, they were justified in refusing to entertain and admit the claim for refund, if made, beyond the time limit prescribed by the Customs Act or the Central Excises Act or rules framed thereunder, as the case may be. Ongoing through the large number of authorities cited by the Ld. Counsel, we find that none of them lend sustenance to the contention raised by him that the Authorities acting under a particular Act, could be held not bound by the provisions, as to time limit prescribed by the said Act or that an Appellate Tribunal like the present one, which is also a creature of the same Statute, could give such directions to the lower authorities impelling them to ignore the provisions of the Act and give relief to the parties by referring to general rights of general provisions under the Limitation Act.
20. The fact that it could not be done, has been on the other hand conceded by almost all the authorities referred to by him. For instance, the case reported as Patel India (Pvt.) Ltd. v. Union of India; AIR 1973 SC 1300 made a specific distinction that where the claim was covered by the provisions of Section 40 of the Sea Customs Act, 1878 (as then prevailing) claim for refund of the excess duty was to be governed by the restrictions of time limit imposed therein. Since it was held, on the facts of that case, that the excess duty paid therein was not contended to be through any of the three reasons set out in Section 40 of the said Act, but on different contentions, then the time limit provided for the plain refund, provided by the Act, would not come into play and while exercising Writ Jurisdiction (emphasis ours), it was held that the relief could not be refused.
21. Similarly, in M/s D. Cawasji & Company etc. v. Assistant Collector of Customs, Mysore; AIR 1975-SC 813 to which the Ld. Counsel made repeated reference, it was further held that when the claim for refund was made after a considerable lapse of time, the High Court was justified in dismissing the writ petition filed for the purpose of obtaining the refund and directing a party to resort to remedy of suit. This case is, therefore, no authority in support of contention of the appellant, that claim for refund even though made after the statutory period of time limit, provided by a particular Act, could be allowed ignoring the said statutory period of limitation.
22. The same proposition, namely, that such statutory authorities were always within their rights in not admitting claims filed beyond time, has been recognised in other authorities also, wherein the refunds were ordered to be made by the High Courts in exercise of writ jurisdiction by invoking the principles envisaged by Section 72 of the Contract Act or in suits filed under the provisions of Section 72 of the Indian Contract Act itself. For instance, it has been held in the case of Premraj and Ganpatraj & Company (P) Ltd. v. Assistant Collector of Customs and Ors.; 1977 ELT (J 166) that
“In so far as orders of the respondents are concerned, no
fault can be found therewith, inasmuch as the application for refund made by the company was actually time-barred, having been presented, as already stated beyond six months of payment of duty so that the Custom authorities are bound to reject it in pursuance to Section 27 of the Customs Act.”
23. To the same effect were observations in the case of Associated Bearing Company Ltd. v. Union of India and Anr.; 1980 E.L.T. 415, and also in Wazir Sultan Tobacco Company (Delhi High Court) reported in 1981 E.L.T. 140 wherein it was obserevd that
“It may be that the Excise authorities because of Rules
11 and 173J would not be able to entertain an application for refnd, but this could not prevent the petitioner from approaching the Court for appropriate direction under Article 226.”
24. It is thus manifest that the relief which was provided to the party was in exercise of the prerogative of writ jurisdiction of the Hon’ble High Court under Article 226 but the proposition was confirmed that so far as authorities acting under the Act were concerned, they could not be held as wrong in rejecting the claim with reference to the time bar.
25. To the same effect are observations of a Division bench of Madras High Court in a case reported as M/s Madras Aluminium Company Ltd. and Ors. v. Union of India; 1980 Cencus (Part II) 50D, wherein it was held that
“In view of the provisions providing for a limit of time
for making claims of refund, the authorities functioning under the Act may not be entitled to direct refund.”
26. These authorities all subscribe to the view that a time limit provided by a particular Act, cannot be ignored and no refund claim admitted after expiry thereof, by authorities acting under the same Act. This proposition has been very clearly pinpointed by the Supreme Court in a case reported as A.I.R. 1975 S.C. 1039 as already discussed above.
27. This proposition of law that the customs authorities were right in rejecting the claim for refund when made before them by reference to Section 27 of the Act was, unequivocally confirmed by the Supreme Court in a case reported as M/s Madras Rubber Factory Ltd. v. The Union of India and Ors.; A.I.R. 1976 S.C. 638. In this case it was clearly held that unless the case could be brought within the four corners of the situation contemplated by Section 27 itself, namely, that the duty had been paid under protest or provisionally or right of refund accrued by virtue of some decision in appeal or revision in the same case, the party coming beyond the period of six months, as prescribed by Section 27(1) of the Customs Act, was liable to have its claim rejected as being beyond time.
28. We also do not feel persuaded in accepting the plea of the Ld. Counsel on behalf of the appellant that the position should be treated differently because here was a case where duty had been realised, which could not be levied and as such upholding the stand of the customs authorities that the refund claim was not entertainable being barred by time was tantamount to allowing the State to retain the money not legally recoverable. Ld. Counsel did make reference to some cases in this regard, the most notable being that of Madras Port Trust v. Hymanshu International, 1979 E.L.T. J 396 and that of M/s Hindustan Sugar Mills v. State of Rajasthan and Ors.; A.I.R. 1981 S.C. 1681, where their Lordships of the Supreme Court were pleased to censure the conduct of the Government in resisting the claims made by the parties by way of civil suits by raising technical plea of limitation of time and in observing that it did not behave the Government to defeat just claims of citizens by coming up with technical pleas.
29. These observations, we may say with utmost respect, do not seem to be applicable to the situations such as exist in the present appeal and similar set of appeals, because firstly the successive authorities, as already discussed, have held that the time limit prescribed by the particular statute, under which the concerned authorities are acting does bind every body including the parties concerned, and secondly; we are aware of some of the authorities of different High Court, where this principle of unjust enrichment has been held applicable both ways. Some of the prominent authorities on the subject are,
(i) Ogale Glass Works Ltd. v. Union of India and Ors. ; 1979 E.L.T. (J 468)
(ii) M/s Madras Aluminium Company Ltd. and Ors. ; v. Union of India; 1980 Cencus (Part II) SOD;
where even while exercising writ jurisdiction, the High Courts of Bombay and Madras respectively declined to give relief to the respective petitioners before them on the ground that in the case of indirect taxes, such as Central Excise etc., the party having recouped themselves by passing on the burden of the tax to the consumer or other dealers, could not be allowed to get back the money from the Government, which was not practicable or feasible for the consumers or such other dealers to get back. Similar proposition was earlier recognised by the Supreme Court in a case reported in A.I.R. 1970 S.C. 698, cited as M/s Tilok Chand Moti Chand and Ors. v. Commissioner of Sales Tax, Bombay and Anr., wherein it was pointed out that the question of giving relief by way of writ jurisdiction was one of discretion for the Courts to be followed from case to case and it was not necessary to give total time to litigant to move to the supreme Court under Article 32.
30. We also find that period of six months has been very categorically provided by the Customs Act for both the sides, namely; for claim of refund as well as in case of short recovered by the Government, because section 28 also places a similar type of embargo on the Government and except under exceptional circumstances, such as fraud etc., by the party, the customs authorities are also prevented from making demand of short levy after the period of six months.
31. We are thus °f the firm view that any claim filed before the custom authorities for refund of the excess duty has to be treated under Section 27 of for refund because there is no other provision providing for application for refund before the customs authorities, and the parties filing such refund claim are to be regulated by and restricted to the time limit provided therein, and customs authorities would be right in rejecting the claims filed after the expiry of the period contemplated therein and parties are debarred from urging general principles of law of limitation in proceedings before the customs authorities.
32. Our further reason why we do not feel impressed with the argument of the Ld. Counsel for the appellant that his application was not to be treated under Section 27 of the Customs Act is because it is apparent from record that the application was filed in the prescribed performa which has apparently reference to Section 27 of the Customs Act because there is no other provision whereunder claim for refund could be filed before the authorities prescribed by the Customs Act.
33. This Tribunal while examining orders passed by such customs authorities, acting under the Act, has to examine their propriety and legality solely with reference to the provisions of the Act itself, and we find that the Customs Act does nowhere contemplate that any cause could be set up by the party before the customs authorities as justification for the delay, and it is the established proposition that the general law of limitation cannot be invoked before quasi-judicial authorities, which proposition has been laid down by the supreme Court, in the case earlier referred to; namely, A.I.R. 1975 S.C. 1039 and also subsequently in another case, reported as A.I.R. 1978 S.C. 209.
34. On a resume of the foregoing discussion, making reference to a number of authorities wherein the principle that statutory authorities are bound by the time limit provided by the Statute, was approved and confirmed, we do not find any ground to interfere in the present appeal. The same is accordingly dismissed.