1. Two questions that arise for consideration in this Revision Petition to the Govt. of India, transferred to the Tribunal and heard by us as an appeal, pursuant to Section 131B of the Customs Act, 1962, are- (a) whether the claim for refund of the quantum of duty alleged to have been, collected in excess of what was lawfully due and paid without protest was barred by limitation under Section 27 of the Customs Act ; and (b) if not, are the goods in question assessable under Heading 27.
10 (i) of the Customs Tariff Act, 1975 and under no other Heading 2. The import of the goods in question (Cables impregnating non-draining compound) in five different consignments, would appear to have occurred on diverse dates between May 1977 and December 21, 1978 (and not December 21, 1979 as would appear from the annexure to the Appellate Order). It was alleged, inter alia, that- (a) notwithstanding the supply of the technical data together with other materials to establish exigibility to duty of the imported goods under Heading No. 27.10 (i) of the Customs Tariff Act, 1975, and in despite of public notification dated the 25th July, 1977 of the Collector of Customs, Bombay, in support of the same and the actual practice of the Calcutta and Bombay Customs in regard to several other consignments of the same materials including those of the Appellant, the Calcutta Customs had, in actual fact, levied and collected duty in terms of Heading 38.01 (19) (i) of the Customs Tariff Act, 1975 ; (b) the difference in the quantum of duty between what was payable and what was actually assessed and paid works out to Rs. 4,40,006.19 in regard to all the five consignments ; (c) nevertheless, the duty assessed was paid by the Appellant without protest.
(a) five claims for refund, in all aggregating to the aforesaid sum of money, alleged to have been collected in excess of what was legitimately due were preferred by the Appellant by three letters dated May 22, 1979, November 22, 1979 and November 26, 1979, and rejected by the Assistant Collector of Customs on the ground that they were barred under Section 27 of the Customs Act by four different orders ; (b) four appeals were taken to the Appellate Collector of Customs, who disposed of all the appeals by a common order confirming the Asstt. Collector's rejection of the claims on the ground of bar of Limitation in Section 27 of the Customs Act ; (c) the Appellant thereupon preferred one single Revision under Section 131 of the Customs Act, 1962, as it was at the relevant time in respect of the aforesaid appeals. The Revision application was transferred to the Tribunal and was numbered as Appeal No. CD (SB) (T) A. 489/81-C.4. At the very outset, the Appellant's counsel Shri A.K. Bhattacharjee was required to state how one single Revision application could maintain against dismissal of five different claims for refund and four appeals, albeit, by a common order. If one single Revision cannot maintain the counsel was required to identify any single appeal to the Appellate Collector or claim for refund which he would like to pursue in the instant proceedings.
5. The learned counsel sought to justify a single Revision of the orders in four separate appeals in respect of five claims for refund concerning five different consignments imported on diverse dates on the ground that it was, after all, one single order in appeal of the Appellate Collector which was required to be revised, and that it was a common order relating to five separate claims for refund is not of any consequence. His contention was obviously untenable. He, however, offered to pay the fees in respect of the other remaining three appeals and prayed for treating the Single Appeal No. 489/81-C as four different appeals and for condonation of delay. The request was acceded to in view of the prevailing practice with the Revisional Authority of entertaining a single Revision against a common order in a plurality of appeals involving identical questions of facts and law and the resulting hardship if we are now to confine the hearing of appeal in one claim for refund instead of five different claims. Accordingly, the Appellant was permitted to file identical copies of Grounds of Appeal in respect of the other four claims for refund as well on payment of separate set of fees in regard to them condoning the delay and they are numbered as Appeal Nos. 1225 to 1227/81-C.6. All the appeals have been heard together, and are disposed of by this order.
7. In a brief compass, the Appellant contended that the bar of limitation in Section 27 of the Customs Act, 1962 did not apply to the claims for refund in question inasmuch as- (a) the collection of the excess amount was without any jurisdiction, or at any rate in excess of jurisdiction, wrongful, without authority of law and dehors the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975, as the goods could not have been assessed under any heading of the Customs Tariff Act other than 27.10(1) as would appear from actual practice in other cases of import of the identical material; (b) the assessment was illegal for want of appropriate examination of the imported goods ; (d) refund of an illegal exaction of tax should not have been refused on the technical ground of bar of limitation where legally a right to obtain refund accrued.
8. Before adverting to the various cases cited at the Bar for the Appellant, it will be essential to emphasize that his case falls far short of pleading want of jurisdiction ab-initio in the Customs authorities to determine the quantum of duty payable in terms of the Customs Act and the Customs Tariff Act either because- (a) any of the relevant provisions of the said enactments are ultravires or declared to be ultravires ; or (b) any error as to a collateral fact was committed whereby the jurisdic- tion was assumed ; or (c) the tax assessed and levied exceeded the constitutional ceiling or limit (B.K. Bhandar Ltd. v. Dhamangaon Municipality - A.I.R. 1966 S.C. 249).
where, indisputably, the Customs authorities had jurisdiction to assess and determine the duty on the Appellant's import of the goods in question, and such jurisdiction inheres in the assessing officer to start with or in other words a quasi-judicial authority has jurisdiction to decide the matter, it is not lost merely on coming to a wrong conclusion whether in law or on fact (A.I.R. 1962 S.C. 1621 - Ujjam Bai v. State of U.P. and Anr.).
9. Nor is the plea of the Customs authorities acting in excess of jurisdiction, while assessing the Appellant's goods, founded on any allegation of incompetence or of an exercise of power in disregard of the conditions laid down by the statute for its exercise or on extraneous considerations or in bad faith or in violation of the principles of natural justice. It is not as if a quasi-judicial authority exceeds its jurisdiction by deciding in good faith and in conformity with the principles of natural justice, an issue that it is empowered to determine.
10. Admittedly, the entire case of the Appellant is that the goods were assessable to duty under Heading No. 27.10 (i) and not under Heading 38.01(19) (i) of the Customs Tariff Act, 1975. Assessment under the latter, it is contended, is wrong. A mere erroneous determination in the undoubted exercise of the assessing officer's jurisdiction of the quantum of duty payable cannot amount to either an action without jurisdiction or in excess of jurisdiction when it may be that it could be determined either wrongly or rightly.
11. Looking at the Scheme of the Customs Act, 1962, it would appear that- (a) special forums have been created and the procedure prescribed for the adjudication of rights and liabilities thereunder ; (b) refund of duty collected on the basis of erroneous assessment has been specifically provided for and a period of limitation had also been prescribed ; The Appellant could have got the error in the assessment rectified in appeal or in other proceedings if he so chose, since questions relating to correctness of an assessment, apart from its constitutionality or competence are for the decision of the authorities constituted under the statute and in accordance with the provisions thereof.
12. Indeed, the Appellant had availed himself in these proceedings of the provision in the Customs Act, 1962, enabling refund (Section 27) but yet he contends that the limitation prescribed therein is not applicable, notwithstanding his payment of the duty assessed without protest, on the grounds that the assessment and levy was without jurisdiction or in excess of jurisdiction or mistake in payment. An application for refund in terms of Section 27 of the Act itself cannot postulate a levy and assessment without jurisdiction or in excess of jurisdiction, or payment under mistake, since such levy, assessment or payment are, obviously, dehors the provisions of the statute. There are other remedies in such cases. Nor can one apply under Section 27 and yet contend that the limitation specifically prescribed for such an application cannot apply oh grounds which cut at the very root of the applicability of the said provision.
13. Once the assessment and the levy were not without jurisdiction, ab-initio, or in excess of jurisdiction, not having been impugned on the specific grounds in paras 8 and 9 supra, mere allegations of want of jurisdiction or acting in excess of jurisdiction, without more, are devoid of substance.
14. A whole class of cases where the assessment was pursuant to a provision which is ultravires or declared unconstitutional can be distinguished from the instant case, where no statutory provision had been impugned at all and the assessment was only a result of an erroneous misconstruction. In the case reported in A.I.R. 1959 S.C. 135 (Sales Tax Officer, Benams v. Kaniahalal Mukandlal Saraf)-relied upon for the Appellant-the levy of Sales Tax on forward transactions was held to be ultravires. In a writ filed subsequently for certiorari quashing assessments made prior to the aforesaid decision and refund of amounts of tax already collected, the question as to whether Section 72 of the Contract Act applied was considered. It was held to be applicable. It is apparent that in such a case the remedy by way of refund is dehors the statute, once the statutory provision pursuant to which the tax was collected was held to be ultravires. The decision has no application where the assessment proceeded upon the construction of provisions admittedly intravires and the remedy by way of refund is prescribed in the statute itself. The period of three years provided in the Limitation Act, 1963, for a suit under Section 72 of the Contract Act cannot, assuming that the payment was made under a mistake, be made applicable for an application under Section 27 of the Customs Act, 1962. For the same reasons, the cases reported in A.I.R. 1956 V.P. 26 and A.I.R. 1957 Patna 112 cited for the Appellant have no application to the instant case. The observation in A.I.R. 1957 Patna 112 to the effect that payment under protest was immaterial was not made in the context of Section 27 of the Customs Act, 1962, which specifically speaks of protest and excludes the applicability of the bar of limitation contained therein only if payment was made under protest.
The said observation cannot avail the Appellant.
15. Similarly, the ratio of the Supreme Court in A.I.R. 1966 S.C. 249 {B.K. Bhandar v. Dhamangaon Municipality) cannot also apply to a case where, admittedly, no constitutional ban on recovery of anything in excess of a specified ceiling arises in the instant case where the assessment was made under one rather than another of two competing entries in the Customs Tariff Act, 1975.(Union of India v. Tarachand Gupta) cannot avail the Appellant seeing that it was not "one of those cases where between two competing entries the statutory authority applied one or the other, though in error". (Para 24 of the Judgment).
17. In 1980 E.L.T. 415 (Bombay), (Associated Bearing Company Ltd. v.Union of India and Anr.), also relied upon for the Appellant, the question again was not assessment under one or the other of competing entries in the tariff. Nor was it a proceeding in terms of the statute itself. That was a case where, by a writ petition (and not by an application under Section 11 of the Central Excises and Salt Act) the order of the Asstt. Collector refusing refund of an illegal levy was sought to be quashed and refund prayed for. The levy was impugned on the ground that there was no warrant for including the cost of packing material in the assessable value of the goods in question and it, was wholly outside the law. It was clearly a case of acting in excess of jurisdiction and not merely an error in the exercise of jurisdiction and has no application to the facts of this case.
18. It would appear unnecessary to notice the other cases (including a report in CENCUS 1980-445D of a judgment of the Civil Judge at Vadodara in a suit) cited to us in profusion -all cases of want of jurisdiction ab-initio or where the action impugned was in excess of jurisdiction as distinguished from erroneous exercise thereof. It would be sufficient if we, respectfully, advert to A.I.R. 1976 S.C. 638 {M/s. Madras Rubber Factory v. Union of India) and (1969) 2 SCWR 446-Union of India v.A.V.Narasimhalu) which clinch the issue.
19. In A.I.R. 1976 S.C. 639, it had been categorically held that an application for refund of duty charged in excess on erroneous classification under one entry of the Tariff Act rather than another beyond the statutory period of limitation prescribed under Section 27 of the Customs Act, 1962, was barred and, hence, was rightly rejected.
(a) where the Act is a complete code dealing with liability to pay duty and for obtaining relief against excessive or erroneous levy and other related matters, the jurisdiction of a civil court to entertain a suit on the ground that the duty was improperly or illegally levied is excluded ; (b) it would not be open in all situations where a party who had right to appeal to refuse to resort to the procedure prescribed by the statute and to file a suit ; (c) civil courts have, however, jurisdiction to examine only cases in which- (i) the provisions of the statute had not been complied with by the assessing authority ; or (ii) such authority did not act in conformity with fundamental principles of judicial procedure or in violation of such principles; or (iii) an order is made which is not within the competence of the assessing authority ; or (iv) the statute which imposes the liability is itself unconstitutional; or (d) the exclusion of the jurisdiction of the civil court does not also imply the exclusion of the jurisdiction of the High Court to issue high prerogative writs against the illegal exercise of authority by administrative or quasi-judicial tribunals ; (e) an erroneous decision of an assessing authority cannot be said to be reached without jurisdiction merely because it may be shown in some collateral proceedings to be wrong.
Consequently, the dismissal of the suit instituted to obtain refund of duty alleged to, have been wrongfully collected was upheld. It was in conclusion that their Lordships had, before parting with the case, observed that the Union of India need not have resisted a small claim on the ground of limitation.
21. The case was cited for the Appellant to support his contention that limitation as a defence to his claims for refund should not have been set up by the Revenue and, at any rate, is not worthy of acceptance by us.
22. It is, however, a clear authority for the proposition that mere erroneous determination of duty in good faith by an assessing authority, otherwise competent, vested with jurisdiction, and without violating the principles of natural justice cannot be said to be reached without jurisdiction.
23. While it may be that, generally speaking, a plea of mere limitation as a bar for recovery of tax illegally levied may not commend itself to judicial conscience, once, however, limitation had been pleaded, it becomes absolutely necessary to decide it. Although, strictly speaking, it is not applicable, it may not be amise to recall in this context that Section 3 of the Limitation Act enjoins a Court to dismiss a suit or application if barred by efflux of time whether limitation has been pleaded or not.
24. In the facts and circumstances of the instant case, we have no hesitation to upheld the contention of the Revenue that the claims for refund are all barred under Section 27 of the Customs Act, 1962, having been preferred much after the expiry of the period of limitation prescribed therein and payment having been made without protest.
25. The second question, in the premises, does not arise for consideration.