IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.7.2009 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE RAJA ELANGO Writ Appeal No.685 of 2000 M/s.Tamilnadu Steel Tubes Ltd., No.7-A, Sunkurama Street, Chennai-600 001, represented by its Managing Director I.S.Goyal .. Appellant / Petitioner vs. 1. The Asst. Collector of Customs (Refund), Customs House, Chennai-600 001. 2. The Collector of Customs, Customs House, Chennai-600 001. .. Respondents/Respondents Writ Appeal filed under clause 15 of the letters patent against the order dated 9.4.1999 passed by the learned single Judge in Writ Petition No.1817 of 1990 on the file of this Court filed under Article 226 of the constitution of India to issue Writ of certiorarified mandamus directing the first respondent to pass a final assessment of duty payable in respect of the aforesaid ten clearnces covered by the ten bills of entry detailed in the statements enclosed to this Affidavit and / or grant refund of the petitioner of the excess amount of Rs.7,64,518.80 collected from the petitioner in respect of the aforesaid ten clearances, in so far as the said collection has been made under a mistake as regards the correct law applicable and the correct duty recoverable. For appellant : Mr.V.Ramachandran SC M/s.Dr.Anita Sumanth For respondents: Mr.M.S.Govindarajan JUDGMENT (Judgment of the Court was delivered by S.J.Mukhopadhaya,J) The matter relates to refund of excess amount of duty paid by the appellant-writ petitioner-M/s.Tamilnadu Steel Tubes Ltd., (for short, https://hcservices.ecourts.gov.in/hcservices/ 'the Company') under the Customs Act, 1962. 2. Writ Petitions were preferred by the Company for a direction to refund the excess amount of duty paid by it, as detailed in both the cases. In fact, in one of the cases, it was pleaded that a sum of Rs.13,03,633/- was paid as excess duty and in another Writ Petition, it was pleaded that a sum of Rs.7,64,518.80 was paid as excess duty. The respondents have negatived the request of the Company on the ground of limitation and informed that as per the Customs Act, the Company is entitled to seek for refund within six months from the date of crediting the amount to the respondents. 3. The learned single Judge, by the impugned order, dated 9.4.1999 in W.P.Nos.10218 of 1988 and 1817 of 1990, dismissed the Writ Petitions, but with liberty to the Company to approach the respondents with a written representation to re-consider the matter. The present Writ Appeal is against Writ Petition No.1817 of 1990. 4. Learned counsel appearing on behalf of the appellant-Company referred to Section 27(1)(b) of the Customs Act, wherein, the period of limitation of six months from the date of payment of duty and interest, is prescribed to "any other case". It was submitted that under the second proviso to Section 27(1)(b), the period of limitation shall not apply when duty and interest are paid under protest. 5. Though the aforesaid submissions have been made on behalf of the appellant-Company, but there is nothing on record to suggest that the appellant-Company paid the duty under protest. No such pleading has been made, nor any evidence had been enclosed in the record in support of the claim that excess duty was deposited under protest. 6. Learned counsel appearing for the appellant-Company then relied on a decision of a Division Bench of this Court in the case of "Collr. Of Cus., Madras. vs. Indo-Swiss Synthetic Gem. Mfg. Co. Ltd.", reported in 2003 (162) E.L.T. 121 (Mad). In the said case, the Court held that if duty had been paid under mistake of law, a Company has a right to recover the duty so paid and there is a corresponding obligation on the part of the Department to refund the excess duty collected and the bar of limitation as provided under Section 27 of the Customs Act, 1962, is not applicable. 7. We have certain doubt with regard to the aforesaid decision of the Division Bench, as under Section 27 of the Customs Act, the period of limitation has been prescribed in regard to refund of duty and the grant of refund cannot be a ground to ignore the limitation period, except in the specific cases as shown under the provisos to Section 27 of the Customs Act. However, it is not necessary to refer the case to a Larger Bench on such issue, as it is not the case of the appellant-Company that it has paid the duty under mistake of law. https://hcservices.ecourts.gov.in/hcservices/ 8. The only plea as was taken in the Writ Petition(s) was that the Company was liable to pay the duty @ 70% and 80%, whereas, they claimed and charged the duty @ 100% and 120% respectively. 9. Having heard learned counsel appearing for the parties and taking into consideration the provisions of law as discussed above, we find no ground made out to interfere with the impugned order passed by the learned single Judge. 10. There being no merits, the Writ Appeal is dismissed, but in the facts and circumstances of the case, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Asst. Collector of Customs (Refund), Customs House, Chennai-600 001. 2. The Collector of Customs, Customs House, Chennai-600 001. 1 cc To M/s.Dr.Anita Sumanth, Advocate, SR.29999 1 cc To Mr.M.S.Govindarajan, Advocate, SR.29820 Writ Appeal No.685 of 2000 NTK(CO) SRA(20/7/2009) https://hcservices.ecourts.gov.in/hcservices/