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CIO 1985 CESTAT 5
[Date of Order: 1985-10-31]
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STO 1985 CESTAT 3
[Date of Order: 1985-08-13]

Delay: Delivery of Order: From the date of issue of the order the Tribunal may presume that the order has been duly dispatched to the persons mentioned therein. But this presumption is a rebuttable presumption. If a party complains of the non-communication of the order and also denies the receipt of the order and further states on oath that the order has not been communicated then the presumption gets rebutted. The burden shifts to the department, to satisfy the Tribunal of the communication of the order by production of proof regarding the dispatch of the order.

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STO 1985 CESTAT 8
[Date of Order: 1985-07-05]

Appeal by department: When the Order is actually received by the authority is to be considered as date of receipt and not the date when the Order is put to transmission.

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CEO 1985 CESTAT 20
[Date of Order: 1985-04-18]
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STO 1985 CESTAT 1
[Date of Order: 1985-03-25]

Valuation : Section 4: Price at which the goods in question was controlled at the material time, the maximum price at which the goods are sold at the place of removal in wholesale is ascertainable and the controlled price could furnish the basis of the assessable value even under the unamended S. 4.

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STO 1985 CESTAT 4
[Date of Order: 1985-03-20]

Penalty: Proceedings under Rule 173-Q are of quasi-criminal in nature. Department should exercise penal power with great caution: Since department itself believes that there was no malafied intention : penalty set aside : Redemption fine reduced.

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STO 1985 CESTAT 2
[Date of Order: 1985-03-02]

Service of Notice: Appeal dismissed by Board as time barred: Subsequently review petition filed by son of the deceased claiming that notice was not served on the deceased during his life period: Appeal admitted and Board’s order set aside.

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STO 1985 CESTAT 7
[Date of Order: 1985-02-20]

Demand: Penalty: Various irregularities noticed in the accounts: Looking to the mass of circumstantial and documentary evidence against the Appellants: Demands sustained except for supply to DGS&D.

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STO 1985 CESTAT 6
[Date of Order: 1985-01-15]

Penalty: Alleged mis-use of exemption: No suppression: The appellants filed the classification lists periodically and claimed the exemption under Notification No. 80/80 under a bone fide belief that they were entitled to the exemption, no objection was taken by the department to the claim of the appellants and the show cause notice was issued long after on 15-12-81 with a vague allegation that 'appellants were claiming benefits under the garb of the notification'. The clearances of all excisable goods effected during the relevant period were made known to the department : Registers were periodically checked by the authorities : Penalty set aside.

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STO 1984 CESTAT 9
[Date of Order: 1984-12-13]
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STO 1984 CESTAT 1
[Date of Order: 1984-07-23]

Customs : Communication of order – plea of non receipt of order do not amount to non-communication : Section 153 of the Act : The limitation commences from the date of communication of the order appealed against. There is no dispute that the order appealed against was passed on 29-4-1983 and was dispatched on 18-8-1983 by registered post. The contention of the applicant is that he had not received the order. Therefore, there is no communication. The mode of service of orders, decision, summons, notices, under the Customs Act is provided in Section 153. The two modes contemplated in this Section are:

(a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent;

(b) if the order, decision, summons or notice cannot be served in the manner provided in Cl. (a), by affixing it on the notice board of the Customs House.(Para 7).

Condonation of delay in filing the appeal : The law requires that he should explain each day's delay to the satisfaction of the authority competent to condone the delay. No explanation whatsoever has been set out in the application. During the hearing, the learned Advocate submitted that he took some time to prepare the appeal, and therefore, the Tribunal should take judicial notice that Advocates normally take a month to prepare the appeal. The learned Advocate also did not inform us when exactly the applicant had approached him and how much time he took to prepare the appeal memorandum. Thus the applicant had not shown any cause much less sufficient cause to condone the delay of nearly 6 months in preferring the appeal. We, therefore, reject this application for condonation of delay. Appeal is rejected on the grounds of limitation.(Para 8,10,11)

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STO 1984 CESTAT 2
[Date of Order: 1984-06-07]

Central Excise :

Validity of the Constitution of the Larger Bench : The Tribunal would be failing in its duty, and going against the avowed intention of the legislature, if different Benches of the Tribunal are allowed to go on with conflicting views. It is thus in furtherance of the object with which the Tribunal was apparently constituted, and to lay down salutary conventions during the initial stages, that it has been thought expedient to resolve conflicting views by composition of Larger Benches and unless, there was an express bar or such a contingency had been covered by some other provision or procedures, the composition of the Larger Benches in execution of the statutory power of the Tribunal to regulate its own procedure; and to ensure smooth discharge of its statutory functions, cannot be open to question, and it falls well within the ambit of its incidental or ancillary powers.(Para 61). (a) It s fully within the competence of the President to constitute Larger Benches for resolution of conflicting views/decisions of different Benches of the Tribunal of concurrent jurisdiction;(Para 101).

Interference with the jurisdiction of the High Court / Supreme Court : This Bench do not feel impressed with the argument that constitution or composition of the Larger Bench interferes with the jurisdiction of the High Court conferred by section 35G of the Act or that of the appellate power of the Supreme Court created by section 35L of the Act because this reference before us is out of matters pertaining to Special Bench, which matters cannot be taken up for references to the High Court under section 35G but, on the other hand, there is an express exclusion. Resolving questions for the Benches, on a point of importance, does not in any manner, interfere with the provisions relating to drawing up of statement to High Court as contemplated by section 35G of the Act nor does it in any manner clash with the provisions of appeal to the Supreme Court as laid down under section 35L of the Act, because that appeal has to be against a final order of the Tribunal whereas the Larger Bench will be only rendering opinion on a given point, and the appeal will still be disposed of by the concerned Bench and the point answered by the larger Bench gets merged in such a final order, thus keeping right of appeal to Supreme Court, aggrieved by the final order of the concerned Bench, intact to the party.(Para 64). (b) The present Tribunal, in view of its all-India jurisdiction, and peculiar features, as highlighted in the preceding part of this Order, cannot be held bound to the views of any one particular High Court, but has the judicial freedom, to consider the conflicting views, reflected by different High Courts, and adopt the one considered more appropriate to the facts of a given case before the Tribunal. This would be, irrespective of the fact, that one particular assessee was within the jurisdiction of a specified High Court or the original adjudicating authority was located there;(Para 101)

Point of time, in relation to the applicability of rules 10 and 10A of the Central Excise Rules as well as Section 11A of the Act : There being continuity of provisions on the subject of demand, for short levy or non-levy inasmuch as, on one occasion rules were replaced by another set of rules, and on the second occasion the contents of the rules got transferred to the statute and as such proceedings, already commenced by issuance of the show cause notice under rule 10A could continue, irrespective of the fact that said rule was subsequently removed from the relevant provisions.(Para 68). We find support for this view from another authority; namely, a Division Bench of Bombay High Court reported as AIR 1954 Born. 135 (Maneklal Chunni Lal v. Commissioner of Income-tax) where also it was held that proceedings taken up by invoking provisions, as prevailing at a given time have to be concluded by applying the same old law, so much so that even reopening of assessment could be undertaken by reference to the provisions of the old law, under which the proceedings had been commenced.(Para 69). In the absence of a saving clause law of limitation would normally operate with retrospective effect. This is in respect of even the enactments, which would have been otherwise entitled to avail of the provisions of section 6 of the General Clauses Act. The position with regard to the change in 'rules', whether by substitution or by repeal or abrogation, is still adverse because there is a catena of judicial authorities in support of the view that the provisions of section of the General Clauses Act are not attracted to rules even though they may be statutory rules, so much so that this proposition has been applied even to rules framed in exercise of the power under Article 309 of the Constitution of India.(Para 84). (c) The proceedings initiated with reference to a rule or provision validly subsisting at the time of initiation of proceedings can continue in spite of repeal or substitution of the original provision;(d) Recourse can be had to the provisions as prevailing at the time of initiation of proceedings, and the period available would be the one as permissible under the provisions existing at the time of issuance of show cause notice, in spite of the fact that the short-levy or non-levy refers, to the period when different period of limitation was available; and lastly.(e) Concept of "breathing time", cannot be countenanced for such type of proceedings as are initiated by way of show cause notices for recovery of duty differential duty or amount opined to have been erroneously refunded.(Para 101).

Vested rights : The question of "vested right" arises only in favour of the "Subject", which would be assessee or taxpayer in this case, and can never be urged by the "State", to be existing in its favour. We feel fortified in this view, in the context of definition of this term; "vested rights" as outlined in Black's Law Dictionary (Fifth Edition: page 1402).(Para 72).73. This authority lays down the principle that only those rights which are : "complete and consummated", can be characterised as "vested rights"; the whole description gives an unmistakable indication that the concept of vested rights has inherent in itself the connotation that it exists only in favour of private citizens and the definition does not even postulate that the State or the Government can agitate or assert existence of "vested rights". This thus puts the matter beyond doubt that the "vesting of rights" cannot be pleaded by the "State".(Para 73). Unless the rights are completely determined, they cannot be considered to be "vested rights", besides above quoted extract; from maxwell on the Interpretation of Statutes (Twelfth Edition; page 17) where it is observed by reference to a judgment of the Judicial Committee that "the mere right existing at the date of the repealing statute to take advantage of the provisions of the Act repealed, was not a "right accrued"............"(Para 74). A right which requires determination by some authority-it being a claim for refund under the relevant law in that case, cannot be treated to be a vested or accrued rights. The plea, therefore, that such a right could not be effected by repeal of law under which it was claimed, was not entertained.(Para 75). The contention as to the existence of vested rights in favour of the State to be absolutely untenable because at the stage the returns are filed or assessment made, or refunds are allowed by the concerned officers, question of "vesting" of any right in favour of the State, acting through the revenue authorities does not arise. For, even issuance of Show Cause Notice, does not automatically create an accrued right, because the right even at that stage is inchoate, and that it becomes complete only when the adjudication order is passed.(Para 76). The generally accepted view, supported by judicial authorities, is to the effect that any legislation while bringing about an amendment, normally incorporates a saving clause, whenever there is an intention to protect previous operation of the repealed law.(Para 77).

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STO 1983 CESTAT 9
[Date of Order: 1983-08-30]

Customs : Special relationship with the supplier : Apart from the fact that OAK hold 45% of equity in the appellant company, there are other features which are a pointer that the two companies have interest in the business of each other. They have been having a common Chairman for several years. The appellants by virtue of an agreement with OAK, are entitled to an over-riding commission of 7½% on imports of goods by independent buyers in India from OAK. The right to get over-riding commission is generally enjoyed by a sole selling agent. The sole selling agent, in turn, is recognised as a `special relationship' in trade and commercial world. It is not quite clear as to why the appellant company was getting from OAK their inter-company price-lists and other confidential price-lists. An ordinary equity holder is not entitled to get such type of confidential information. Another intriguing feature in our view is as to why the appellants were supplying at periodical intervals to OAK financial and administrative statements pertaining to their functioning. The only plausible explanation for such a state of affairs is that OAK were monitoring the performance of the appellants. The right of a person or a corporate body having share holding in another company does not confer a right of this type. It may be difficult to go to all along with Shri Nair's contention that the `appellants belong to OAK'. Nevertheless, it is clear that the appellants and OAK have common commercial interests other than those arising from the OAK having a portion of the equity in the appellant company. In view of the factors stated above we concur with Collector's finding that imports made by the appellants had to be assessed under Section 14(1)(b) of the Act.(Para 13).

Valuation of imported goods within the purview of Section 14(1) of the Act : The case of the respondent is that the invoices issued by OAK are prepared on the basis of their inter-company prices which are much lower than the correct value of the imported goods. As regards the appellants' grievance that the Custom House has relied on values pertaining to a few stray imports by independent parties, the respondent's case is that in the absence of any other material, such invoices have to be taken into account for their worth. In a situation no other option but to resort to fix the values of the goods under Section 14(1)(b) applying the best judgment formula. There is no fault either in the Collector taking recourse to subjecting the appellants' goods to the provisions of Section 14(1)(b) or resorting to the best judgment formula.(Para 14). The only point unable to agree with the Collector is the basis on which the loading figure of 100% has been arrived at. In this context para 7.11 read with para 8 of the Collector's order is relevant. The Collector has, taken a view that the overhead and administration cost of OAK has not been correctly reflected in the invoices of OAK. He has taken the overhead and administration cost to be 60% of the factory cost of the goods. To this he has added the royalty of 4-5% and the over-riding commission of 7½%. When added up, this figure should come to approximately 70%. For the balance 30% i.e. 100%-70%, the Collector has not given any plausible basis.(Para 15). figure of 100% adopted by the Collector is on a higher side than would be warranted by the evidence and circumstances of the case. We feel that instead of loading the invoice by 100%, the same should be loaded by 50% (on the f.o.b. value). We have arrived at this figure of 50% loading by taking into account 5% towards royalty expenses, 7½% as over-riding commission and 37.5% towards overhead and administration expenses, which, in our view, do not get reflected in the invoice prices. This loading figure will apply to the entire range of goods viz. finished electronic products, equipments, machines, spares, raw materials etc. imported by the appellants from OAK.(Para 18).

Invokation of extended period : The appellants were not making true declaration with regard to their exact relationship with OAK on the reverse of the form of bill of entry. The form of bill of entry has been prescribed by the Bill of Entry (Forms) Regulations, 1976. Clause 4 of the declaration in the prescribed form to be signed by the importer on the reverse of the bill of entry is reproduced below :

"4. I/We am/are not connected with the suppliers/manufacturers as

(a) agent/distributor/indentor/branch/subsidiary/concessionaire;

(b) collaborator entitled to the use of trade mark, patent or design; and

(c) otherwise than as ordinary importers or buyers."

There is no escape from the fact that appellants had to clearly indicate their exact status in this behalf vis-a-vis OAK. There are a large number of bills of entry in which such declaration was not filed correctly. This was done willfully and consciously so that the Customs House should remain in the dark with regard to the under-invoicing of imports by the appellants.(Para 19). To make incomplete or incorrect declarations in a statutory form having a direct bearing on the question of valuation cannot, by any stretch of imagination, be described as a `clerical omission'. The customs authorities, were well within their right to treat these so-called `clerical omissions' as a deliberate suppression of material evidence. Therefore, the Collector was justified in invoking the proviso under sub-section (1) of Section 28 to enable him to recover duties short levied for the past period within the limitation stipulated under the said proviso.(Para 20).

Confiscation of goods : OAK had the right to nominate only one Director on the Board of Directors of the appellants. But from the agreement dated 8-11-1967 we find that OAK had the right to appoint four Directors on the Board of Directors of the appellant company. Vide letter No. 4(9)/67/DS, dated 11-9-1968 sent by the Deputy Secretary, Ministry of Defence, Department of Defence Supplies, New Delhi to the appellants where vide condition (vii) thereof, it is provided, "the entire production of Quartz Crystals, Quartz Crystal Filters and Quartz Crystals Oscillators will be exported", whether this condition of export obligation was later on modified or done away with is not borne out by the record.(Para 21). Therefore, Collector was correct in ordering confiscation of the goods under Section 111(m) and imposing a penalty under Section 112 of the Act.(Para 22).

Views of Member (J) : Unless, therefore, it is impossible to ascertain the market price ruling on the date of importation in accordance with Section 14(a) of the Act, or Rules 3(a)-(d) of the Rules, (the other rules except Rule 8 not being relevant in the facts and circumstances of the case), a best judgment assessment of the value of the goods imported cannot be resorted to. The various grounds taken in the Appeal urging acceptance of the invoice prices as the value for assessment in terms of Section 14(a) of the Act are totally misconceived since they cannot in any view reflect the market price - the price at which the goods are ordinarily sold or offered for sale at the time and place of import-the price at which the imported goods are capable of being sold being irrelevant.(Para 26). I agree, in the context of all the facts and circumstances of the case, that -

(i) it is not possible to assess the deemed value of the goods either in terms of Section 14(a) of the Act or Rules 3(a)-(d) of the Rules. The assessment can only be a best judgment assessment under Rule 8;

(ii) on the weight of evidence, there can be no doubt that the Appellant and OAK are mutually interested in the business of each other in the sense that they promote each other's business.

Accordingly, if in a best judgment assessment, the invoice price is loaded as proposed by my learned brethren, I see no objection to it.(Para 27,28).

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CEO 1983 CESTAT 3
[Date of Order: 1983-08-04]
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STO 1983 CESTAT 3
[Date of Order: 1983-06-14]

Central Excise : Fraud : Fraud", occurring in clause (9) of the proviso to Rule 10 had not been defined, in the Rules. Going by the definition of the word in the Contract Act, it would mean and imply -

(i) the suggestion, as to a fact, of that which is not true by one who does not believe it to be true;

(ii) the active concealment of a fact by one having knowledge or belief of the fact; suppresio veri, suggestio falsi;

(iii) a promise made without any intention of performance. (Para 10).

Period of limitation : Held that the proviso to Rule 10 was altogether inapplicable for the recovery of the duty, for,

(a) when the entire process was discussed and ultimately the Revenue were told that they would start "remelting all our returned goods" in accordance with the clearance given by the excise authorities, there has been no suppression of the truth of any fact in which the Appellant did not believe in, i.e., no misstatement; no suppressio veri suggestio falsi; and no promise made without intent to perform. It was hard put to it to disclose any single aspect of the entire process as fraudulent. It was a plea of despair that the failure of the Appellant to claim strict adherence to the requirement of the rules was, per se, an act of fraud;

(b) "fraud" has not only to be alleged but particulars thereof have necessarily to be furnished; there was not even an allegation of fraud in the show cause notice; or of misstatement or suppression of facts; but yet the Collector proceeds to observe that it was alleged in the show cause notice that the Appellant had illegally availed of the facility under Rule 173(H) by "misrepresenting facts and suppressing vital details" and further proceeds to hold that there was willful misstatement, and suppression of facts; the observation as well as the finding are as unwarranted since they fell outside the ambit of the show cause notice, as they are untenable in the absence of particulars;

(c) even if it is to take it that "wilful misstatement" or "suppression of facts" do not come within "fraud" occurring in Rule 10 and they are apart from what strictly came within its scope, still, no misstatement or suppression of facts at any stage had been either alleged or proved;

(d) in the premises, the case does not fall within clause (i) to the proviso to Rule 10 so as to attract the five year period of Limitation to govern the adjudication in question; (Para 11).

Abatement of the proceedings in consequence of the repeal of Rule 10 and its re-enactment as Section 11A of the Act w.e.f. 17-11-1980, without providing for any savings of pending proceedings : With the omission of Rule 10 a notice issued under that Rule will lapse and no proceedings under that provision can now be taken. The Notification omitting Rule 10 did not contain any provision for continuance of the proceedings already initiated and neither did Act 25 of 1980 which introduced Section 11A of the Act adopt the legal device of creating a fiction by virtue of which proceedings under Rule 10 could be deemed to be proceedings under Section 11A of the Act. The Supreme Court in the case of Rayala Corporation has held that Section 6 of the General Clauses Act does not apply to cases of omission and further that it does not apply to the case of repeal of a Rule. Once help of Section 6 of the General Clauses Act is not available, proceedings under Rule 10 cannot be continued for, the provision under which they were taken no longer exists on the statute book."

It makes little difference if a provision in force till 17-11-1980 in the shape of a Rule forming part of the Act was continued from 17-11-1980 in the shape of a provision in the Act itself. Accordingly, it was a case "of continuance of the same provision as part of the Act, the only difference being that prior to 17-11-1980 it was in one part of the Act and subsequent to that date in another part of the same Act".(Para 15).

Rule 173 H- Repairing, reconditioning etc of rejected duty paid goods : It will be observed that, identity of the goods was the issue and not their manufacture (irrelevant altogether for the purpose of application of the notification). Manufacture was conceded. Identity was contested. It was held that notwithstanding manufacture, the identity could still be established. To say in the head note that no new product was manufactured on remelting and repairing is misleading;

(a) on the contrary, in this case, the issue is manufacture. Identity becomes relevant only to the extent it disproves manufacture. Since identity could not be established, there has been a manufacture;

(b) in the premises, the ratio of the aforesaid decision is inapplicable to the facts of this case. If at all, it supports the contention of the Respondent that there has been a manufacture on melting the pistons in question.

(c) It is too facile to assume that there was no manufacture since no new product emerged. To say that it was pistons that were received and it was again pistons that were remade is to miss the point that the rejected pistons partook of the character of mere scrap. They did not qualify to be anything other than scrap. They were useless as pistons. Had it not been so, they need not have been rejected at all to be remade.

(d) If the defects could not be rectified unless they were melted and remade i.e. manufactured, obviously, Rule 173(H) should not have been resorted to at all. One cannot transgress a provision and yet be heard to say, in defence, that transgression was inevitable in availing of the benefit of the said provision. If a provision cannot be availed of without transgressing it, resort to it should be ruled out.

(e) In the premises, it has to be held that the process carried out by the Appellant did not come within the scope of Rule 173(H) of the Rules, inasmuch as it amounted to "manufacture" of the pistons in question. (Para 16). Appeal is allowed (Para 19).

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STO 1983 CESTAT 6
[Date of Order: 1983-03-16]

Customs : Penalty : Statement to be corroborated with evidence : In respect of the statement of the co-accused on which the Department seeks to rely on, there are judicial pronouncements according to which unless there is other corroborative evidence, one cannot be convicted on the sole confession of such co-accused.(Para 2). These proceedings are quasi-criminal in nature. Statement of co-accused, which is, in essence, much the same as the confession, is not only self-exculpatory but requires to be corroborated in material particulars. There is not an iota of such evidence.(Para 5). The entire statement of co-accused at best creates a strong suspicion against the Appellant but such suspicion cannot take place of evidence. Therefore, the imposition of penalty on the Appellant under Section 112 is not warranted by law and, therefore, set aside the penalty and allow the appeal.(Para 6,7).

 

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STO 1983 CESTAT 5
[Date of Order: 1983-01-06]

Customs : Refund filed beyond period of limitation U/S 27 of the Customs Act, 1962, whether sustainable : Whether general principles of law of limitation applicable for relaxation of time limit : It is 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.(Para 12). 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.(Para 13).

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 : Although the party 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.(Para 14). 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.(Para 18). On going through the large number of authorities cited by the Ld. Counsel, that none of them lend sustenance to the contention 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.(Para 19). 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 fileds under the provisions of Section 72 of the Indian Contact Act itself.(Para 22). 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.(Para 24). 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 others; 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.(Para 27). 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.(Para 29). 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. Any claim filed before the custom authorities for refund of the excess duty has to be treated under Section 27 of the Customs Act, 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 proceeding before the customs authorities.(Para 30,31). 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. Appeal dismissed.(Para 33,34).

 

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