Civil Appeal Nos
1565 156973
Appeals by Special Leave from the orders Nos
4844 4848 of 1972 dated 25th November 1972 of the Central Govt Ministry of Finance Govt
of India
D V Patel and K R Nambiyar for the Appellant
G L Sanghi and Girish Chander for the Respondents
The Judgment of the Court was delivered by UNTWALIA J
The appellant company in these appeals by special leave is a manufacturer of rubber tyres and tubes
It imports several raw materials including Pyratex Vinyl Pyridine Latex used in the manufacture of rubber tyres and tubes
The Customs authorities of the Government of India have been charging custom duty on V P Latex under the residuary item 87 of the Indin Tariff Act 1934 instead of ICT 39 an item meant for charging duty on raw rubber
The custom duty charged under item 87 is much more than the one chargeable under item 39
A countervailing duty under item 15 A of the Central Excise Tariff in accordance with the Central Salt and Excise Act 1944 is also charged if the article imported is not treated as raw rubber
On five consignments of V P Latex imported by the appellant in the year 1968 custom duty was charged under item 87 by the Appraiser pursuant to his order of assessment
Since he was an officer lower in rank than the Assistant Collector of Customs the appellant filed five applications before the Assistant Collector under section 27 1 of the Customs referred to as the Act for refund of the excess amount of duty charged
In other words the appellant took the stand that if a custom duty would have been charged on V P Latex under item 39 then the amount would have been less to the extent of Rs 37487949 on the five consignments in question
It therefore claimed the refund of the said amount the details of which are as follows ___________________________________________________________ Bill No and date Date of Delay Amount claim for refund ____________________________________________________________ 1
D NO
1644 dated 8 4 69 314 Months 5030553 24 6 1968 2
D No 1024 dated 27 6 69 3 Months 6033997 18 9 1968 3
D No 1132 dated 8 4 69 2 Months 16161510 21 8 1968 4
D No 1931 dated 10 4 69 1 Months 5051271 23 7 1968 5
D No 68 dated 10 4 69 4 Months 5210618 1 6 1968 ____________ 37487949 ____________________________________________________________ Under section 271 of the Act the application for refund had to be made before the expiry of six months from the date of payment of duty the date of payment being the date of the bill in each case
Thus there was a delay varying between 1 month to 4 months in the filing of each of the applications for refund
The Assistant Collector of Customs dismissed the applications on the ground that they were filed out of time
The appeals to the Appellate Collector of Customs filed under section 1281 b of the Act failed
The appellant took the matter in revision to the Central Government under section 131
The revisions were dismissed by the Central Government by their order dated November 29 1972 stating therein The Govt
of India have carefully considered the reasons advanced by the petitioners for their failure to prefer the claims for refund within the time stipulated under section 27 of the  but see no justification to interfere with the appellate orders
The revision applications are therefore rejected
 These appeals were filed from the said order after obtaining special leave of this Court
Mr D V Patel learned counsel for the appellant submitted that in view of the recent decision of this Court in Dunlop India Ltd etc
vs Union of India  Ors
V P Latex was chargeable to duty under item 39 only
The applications filed by the appellant for refund of the excess amount have erroneously been dismissed on the ground of having been filed out of time
Counsel submitted that the appellant used to pay custom duty not as and when a particular consignment was received but by making deposits in a running account
Hence no parti 866 cular date of payment could be assigned in respect of a particular consignment
He further submitted that the duty was paid under protest and hence under the proviso to sub section 1 of section 27 the limitation of six months did not apply
Mr G L Sanghi learned counsel for the respondents contended that no case of running account had been made before the authorities below and that there was nothing to show that the duty had been paid under protest in relation to any of of the five consignments
It is no doubt true that in view of the decision of this Court mentioned above the custom duty was chargeable on import of V P Latex under item 39
The authorities below do not seem to have decided the refund applications of the appellant on merits
They have dismissed them merely on the ground of limitation
The only question therefore which falls for determination by us is whether the applications for refund were filed out of time
Section 27 reads as follows 27
1 Any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of duty Provided that the limitation of six months shall not apply where any duty has been paid under protest
Explanation Where any duty is paid provisionally under section 18 the period of six months shall be computed from the date of adjustment of duty after the final assessment thereof
2 If on receipt of any such application the Assistant Collector of Customs is satisfied that the whole or any part of the duty paid by the applicant should be refunded to him he may make an order accordingly
3 Where as a result of any order passed in appeal or revision under this Act refund of any duty becomes due to any person the proper officer may refund the amount to such person without his having to make any claim in that behalf
4 Save as provided in section 26 no claim for refund of any duty shall be entertained except in accordance with the provisions section
The appellant s case obviously and admittedly was not covered by sub section 3 as it had not challenged the order of assessment in any appeal or revision
Nor was it a case where any duty was paid provisionally under section 18
The appellant s case was governed by sub section 1 of section 27
No case of any running account was set up by the appellant nor was there anything in the records of this case to substantiate it
Custom duty was paid in respect of each of the five consignments on the date of its respective bill
Ultimately this 867 position could not be disputed before us
The appellant however contended that the duty was paid always under general protest which covered the cases of these five consignments also
Hence under the proviso to sub section 1 the limitation of six months does not apply
Our attention was drawn to several letters in the records of the appeals before us to substantiate the plea of payment under protest but none of them helps the appellant
We may refer to only two of them
The appellant wrote a letter on February 8 1968 to the Assistant Collector of Customs Madras making out a case therein that V P Latex was assessable to duty under item 39 ICT
Finally in this letter a protest was made for the assessment of duty under item 87 on V P Latex imported by the company in the past
This letter was written before the five consignments in question were imported and duty paid thereon
The protest therefore embodied in the letter aforesaid was not in respect of any of these consignments
A letter written on July 15 1968 was a letter written at a point of time when two out of the five consignments had been imported but three were imported after the writing of this letter by the appellant to the Asstt
Collector of Customs Madras
This letter relates to a consignment of 59 drums of V P Latex which could not be connected with any of the five consignments in question
Thus there is nothing to show that duty on them was paid under protest general or specific
It was lastly contended on behalf of the appellant that in view of the recent decision of this Court the Govt should be directed to refund the excess amount of Rs 37487949 charged on the five consignments
We are unable to do so because the present appeals arising out of the orders made by the Government of India in proceedings under section 271 of the Act have got to fail on the ground that the view taken by the authorities below on the question of limitation could not be shown the incorrect
In the result the appeals fail and are dismissed
There will be no order as to costs
SR Appeals dismissed


Summary:
V P Latex imported by the appellants was treated as falling under item 87 of the Indian Tariff Act 1934 the custom Authorities and custom duty was charged in addition to a countervailing duty under item 15A of the Central Excise Tariff in accordance with the Central Salt  Excise Act 1944
The appellants contending that VP Latex is an item of raw rubber covered only by item 39 of the Indian Tariff Act 1934 preferred refund claim under section 271 of the Customs Act before the Assistant Collector which was dismissed on the ground of limitation
The appeal under section 1281b and the Revision failed
Dismissing the appeals by special leave the Court
 HELD In the instant case there was nothing to show that duty was paid under protest general or specific and therefore the claim was not within the period of limitation
The view taken by the authorities on the question of limitation was correct
867 DE Dunlop India Ltd etc
vs Union of India 1976 2 SCR P 98 referred to