Mascot Agro-chemicals (P) Ltd. Vs. the Assistant Collector Customs - Court Judgment

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refund - customs--limitation--writs under constitution--maintainability--appellant claiming refund of excess duty paid on 'butachlor technical 90%' on basis of wrong classification of goods under heading 3808.30 instead of under heading 2942--claim preferred after expiry of period of 6 months provided under section 27--claim rejected as time-barred by lower authority--appellant filing writ petition on ground that section 27 of customs act would not be applicable where levy had no authority of law--writ petition dismissed--case of appellant was that duty was levied on higher rate on basis of wrong classification--not maintainable--levy not without authority of law--person applying for refund to apply within time prescribed by section 27--constitution of india, articles.226, 265--customs act (52 of 1962), section.28 - customs tariff act (51 of 1975), sch.i, headings 2942.00, 3808.30. - karnataka municipal corporations act, 1976 section 35(1)(a) :[p.d. dinakaran, c.j. & v.g. sabhahit,j] alternative remedy - maintainability of writ of quo warranto against elected person when alternate and efficacious remedy available - petitioners-voters in municipal ward challenged election of respondent as corporator to municipality from ward reserved for scheduled tribe allegation that he was elected by producing false caste certificate single judge held that writ of quo warranto would not lie in respect of a person elected to the post and petitioners have got alternate remedy to question the same writ appeal against held, it is clear from the provisions of section 33(2)(b) of the act that any voter of the division concerned can present an election petition. the appellants, who have described themselves as voters of mysore mahanagara palike can challenge the election to the post of corporator. when the appellants have got an alternate and efficacious remedy to challenge the election of the sixth respondent and no ground whatever is made out for bypassing the said alternate and efficacious remedy in exercise of writ jurisdiction of high court and hence, the single judge was justified in dismissing the writ petition. it is open to the appellants to work out their remedy by filing the election petition in accordance with law and wherefore, it is unnecessary to consider the contention as to whether writ of quo warranto would lie t challenge the post held by a person by virtue of election. - at best, it may be a case of excess levy by a wrong order or an irregular exercise of the power to levy duty under the act. it is in those circumstances that the supreme court applied limitation provided for in article 113 of the limitation act (residuary article). it is well settled that when a specific period of limitation is provided in a special enactment, the general provisions of the limitation act can have no application.p. krishnamoorthy, j.1. this appeal is by the writ petitioner in w.p.no. 15881/1988. the appellant imported a chemical by name 'butachlor technical 90% for use in the manufacture of herbicides. at the time of importation of the chemical in april 1986, the goods were classified under heading no. 3808=30 of customs tariff act 1975 and fixed the rate of duty as 70% basic and 40% auxiliary. the appellant paid the duty at that rate during the period from 16-4-1986 to 26-6-1986. in june 1987 the said goods were classified under heading 29420.00 of customs tariff act 1975 and duty was levied at 60% basic and 40% auxiliary. the appellant had thus paid an excess 10% duty amounting to a total of rs. 1,90,670-20. the appellant filed a claim for refund of excess on 24-7-87. the respondents summer early rejected the claim on the ground that the claim is made beyond 6 months and that the claim is barred under section 27 of the customs act 1962. the above orders were challenged in the writ petition on the ground that section 27 of the act can have no application where the levy had no authority of law.2. the learned single judge dismissed the petition on the ground that there is distinction between cases where the levy is wholly unsustainable in law in that it is opposed to the provision contained in article 265 of the constitution of india or is opposed to any other provision of the constitution and cases where the levy is supported by law but a wrong provision is applied in that the collection was made under a wrong entry. in the former case it is certainly open to the aggrieved party either to file a suit for recovery of tax or duty illegally collected without any authority of law or to approach the high court under article 226 of the constitution of india for relief. but in the latter case the party has to continue himself within the provisions of the act under which the levy is made and if there is non-compliance with the provisions of the act he will not be entitled to any relief.3. after hearing counsel for the appellant and respondent we are dearly of the opinion that the view taken by the learned single judge is correct. there is no case for the appellant that levy of the duty is wholly without authority of the law. the only case of the appellant is that the duty was levied on the basis of the wrong classification of goods under heading 3808-30 instead of under heading 2942. the petitioner paid the duty under classification no. 3808-30 without demur. he filed the application for refund only when the same goods were classified under heading 2942-00 subsequently. it is also pertinent that the petitioner himself initially classified the goods under heading no. 3808-30 and paid duty. no doubt the petitioner may be entitled to a refund if the payment is under a mistake. but in cases where the levy is legal but there is excess levy of duty it cannot be said that the levy is not supported by authority of law. at best, it may be a case of excess levy by a wrong order or an irregular exercise of the power to levy duty under the act. if the levy is under the act, any person aggrieved by an excess levy of duty has to redress his grievances within the four corners of the act and cannot be allowed a remedy outside the, provisions of this act, which is a self-contained enactment. if such person applies for refund of the excess duty paid under the provision of the act, which alone the petitioner is entitled to in this case, he has to comply with the provisions of the act including the one contained in section 27 of the act. admittedly the petitioner did not apply for refund within the time prescribed for in section 27 of the act and accordingly he is not entitled to any relief as rightly held by the learned single judge.4. the counsel for the appellant relied on the decision of the supreme court in sri vallabh glass works ltd. and anr. v. union of india and ors., 1984 (16) elt 171. to contend for the position that even in cases for refund of excess payment of duty article 113 of the limitation act is applicable and he is entitled to apply within 3 years from the date on which the mistake was discovered by him. but it is to be noted that the above case arose under the central excise and salt act 1944 where there was no corresponding provision to section 27 of the customs act at the relevant time. section 11b which corresponds to section 27 of the customs act came into operation only on 18-11-1980 whereas refund was claimed for a period prior to that and the section had no application at the relevant time. it is in those circumstances that the supreme court applied limitation provided for in article 113 of the limitation act (residuary article). it is well settled that when a specific period of limitation is provided in a special enactment, the general provisions of the limitation act can have no application.5. moreover in the above case the petitioner therein questioned the validity of the levy itself on the ground that tariff item 23a(1) of the first schedule to the act under which duty was levied was not applicable. in this case the levy as such is not challenged which was paid without any protest. what is challenged is the orders of the authorities under the act and in such circumstances, this court had only to consider the question as to whether the orders were legal and correct in the light of the provisions contained in the act including the provision providing a period of limitation.6. in collector of c.e., chandigarh v. doaba cooperative sugar mills, 1988 (37) elt 478, section 11a of central excise and salt act 1944 in para 6 the supreme court observed as follows:'it appears that where the duty has been levied without the authority of law or without reference to any statutory authority or the specific provisions of the act and the rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. but in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the central excise act and the rules framed thereunder must be adhered to. the authorities functioning under the act are bound by the provisions of the act. if the proceedings are taken under the act by the department, the provisions of limitation prescribed in the act will prevail. it may, however, be open to the department to initiate proceedings in the civil court for recovery of the amount due to the department in the case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. this was the view taken by the tribunal in a previous decision in the case of miles india ltd., v. the assistant collector of customs but it was assailed before this court. the appeal was withdrawn. this court observed that the customs authorities, acting under the act were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor in the relevant provisions of the customs act 1962. if really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised (see the observations of this court in miles india ltd., v. the assistant collector of customs, 1987 (30) elt 641 (sc).no doubt the appeal before the supreme court was a statutory appeal under section 35l(b) of the central excise and salt act 1944. the question was in regard to a demand for excess refund. it was held that the department may be entitled to initiate proceedings in a civil court for recovery 'in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund'. it is therefore clear that a proceeding outside the act by a suit is permissible only when the money received is not by refund and is completely outside the provisions of the act.7. in miles india ltd., v. assistant collector of customs, the supreme court after holding that the customs authorities acting under the act were justified in rejecting the claim for refund as they were bound by the provisions of section 27(1) of the customs act observed: 'if really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternate remedy as it may be advised.'8. we do not think that by the above observation their lordships intended to lay down that in every case of payment of duty by mistake irrespective of its nature is questionable in the ordinary civil court. as stated earlier if the duty levied is completely without sanction of law and if payment is made consequently a suit is maintainable and the provisions of the limitation act would apply to such claims. but if the mistaken payment is made in pursuance to an order passed under the provisions of a valid enactment, though excessive, it could be claimed back only under the provisions of the very enactment and not outside the same. in that view of the matter the claim for refund made by the writ petitioner was dearly barred and the single judge was right in dismissing the writ petition.there is no merit in this appeal and it is accordingly dismissed.