Tamilnadu Steel Tubes Ltd. vs The Asst. Collector of Customs (Refund) and The Collector of Customs

S.J. Mukhopadhaya, J.—The matter relates to refund of excess amount of duty paid by the appellant-writ petitioner-M/s. Tamilnadu Steel

Tubes Ltd., (for short, ''the Company'') under the Customs Act, 1962.

Writ Petitions were preferred by the Company for a direction to refund the excess amount of duty paid by it, as detailed in both the cases. In

fact, in one of the cases, it was pleaded that a sum of Rs. 13,03,633/- was paid as excess duty and in another Writ Petition, it was pleaded that a

sum of Rs. 7,64,518.80 was paid as excess duty. The respondents have negatived the request of the Company on the ground of limitation and

informed that as per the Customs Act, the Company is entitled to seek for refund within six months from the date of crediting the amount to the

respondents.

The learned single Judge, by the impugned order, dated 9.4.1999 in W.P. Nos. 10218 of 1988 and 1817 of 1990, dismissed the Writ

Petitions, but with liberty to the Company to approach the respondents with a written representation to re-consider the matter. The present Writ

Appeal is against Writ Petition No. 1817 of 1990.

Learned Counsel appearing on behalf of the appellant-Company referred to Section 27(1)(b) of the Customs Act, wherein, the period of

limitation of six months from the date of payment of duty and interest, is prescribed to ""any other case"". It was submitted that under the second

proviso to Section 27(1)(b), the period of limitation shall not apply when duty and interest are paid under protest.

Though the aforesaid submissions have been made on behalf of the appellant-Company, but there is nothing on record to suggest that the

appellant-Company paid the duty under protest. No such pleading has been made, nor any evidence had been enclosed in the record in support of

the claim that excess duty was deposited under protest.

Learned Counsel appearing for the appellant-Company then relied on a decision of a Division Bench of this Court in the case of Collr. Of Cus.

Vs. Indo-Swiss Synthetic Gem Mfg. Co. Ltd., . In the said case, the Court held that if duty had been paid under mistake of law, a Company has a

right to recover the duty so paid and there is a corresponding obligation on the part of the Department to refund the excess duty collected and the

bar of limitation as provided u/s 27 of the Customs Act, 1962, is not applicable.

We have certain doubt with regard to the aforesaid decision of the Division Bench, as u/s 27 of the Customs Act, the period of limitation has

been prescribed in regard to refund of duty and the grant of refund cannot be a ground to ignore the limitation period, except in the specific cases

as shown under the provisos to Section 27 of the Customs Act. However, it is not necessary to refer the case to a Larger Bench on such issue, as

it is not the case of the appellant-Company that it has paid the duty under mistake of law.

The only plea as was taken in the Writ Petition(s) was that the Company was liable to pay the duty @ 70% and 80%, whereas, they claimed

and charged the duty @ 100% and 120% respectively.

Having heard learned Counsel appearing for the parties and taking into consideration the provisions of law as discussed above, we find no

ground made out to interfere with the impugned order passed by the learned single Judge.

There being no merits, the Writ Appeal is dismissed, but in the facts and circumstances of the case, there shall be no order as to costs.