MASCOT AGRO CHEMICALS P LIMITED BANGALORE Vs. ASSISTANT COLLECTOR OF CUSTOMS CUSTOMS DIVISION VASANTHNAGAR BANGALORE

JUDGEMENT

(1.) This appeal is by the writ petitioner in W.P. No. 15881 of 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% auxillory. 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 2942.00 of Customs Tariff Act, 1975 and duty was levied at 60% basic and 40% auxillory. The appellant had thus paid an excess of 10% duty amounting to a total of Rs. 1,90,670.20. The appellant filed a claim for refund of excess on 24-7-1987. The respondents summararily 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 confine 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 weare clearly 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 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 2942.00. 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 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 Judge.