Judgment:
1. These 16 appeals raise a common question of law and were therefore heard together.
2. These appellants had preferred claims for refund of duty paid and the claims were rejected by the Assistant Collector concerned on the ground that the claims were barred by time with reference to Section 27 of the Customs Act. These orders were upheld by the Appellate Collector concerned, again on the same ground. It is the revision petitions preferred by these appellants against the said orders that are the present deemed appeals, having been received, on transfer, on the formation of this Tribunal.
3. The appellants noted at 3, 5 to 12 and 16 in the annexure to this order did not appear in person or send any representations. The appellants at 2, 4 and 15 had sent either a letter or a telegram requesting for orders be passed on merits as they would not be appearing in person. The appellant at No. 1 of the annexure had sent a request for adjournment which we have declined. The appellants at No.13 and 14 of the annexure had sent telegrams that they would not be appearing in person and that we may consider two decisions cited by them in their telegrams before arriving at our conclusion on the question at issue. Accordingly we have considered the merits of the cases as put forward in the revision petitions and have heard Shri Vineet Kumar for the department.
4 The fact that the refund claims in all these instances had been preferred after the expiry of the period of limitation prescribed in Section 27 of the Customs Act is not in dispute. The contention for all the appellants is that they had preferred their refund claims shortly after they discovered their mistake that they had paid duty under a mistaken view of the law and that in such circumstances it is the provisions of the Limitation Act that would be applicable, the claims for refund being covered by the provisions of Section 72 of the Contract Act and hence their refund claims ought not to have been considered with reference to the period of limitation prescribed in Section 27 of the Customs Act.
5. A similar contention had been put-forward before this Tribunal in an earlier case (of M/s. Miles India Limited) and rejected by this Tribunal in the decision reported in 1983 E.L.T. 1026. On this decision of the Tribunal being appealed against, the Supreme Court had upheld the decision of this Tribunal as reported in 1985 ECR 289. In view of this decision of the Supreme Court the contention now raised as to the claim being covered by Section 72 of the Contract Act and, consequently, by the provisions of the Limitation Act, cannot be accepted. It had been laid down in the decision of this Tribunal that authorities functioning under the provisions of the Customs Act will be governed by the provision for limitation as contained in the Act and that since the refund claims were preferred to the authority functioning under the Act the claim would be governed by provision of limitation in Section 27 of the Customs Act and cannot be considered with reference to the provision under the Limitation Act. As earlier mentioned, this proposition has been upheld by the Supreme Court.
6. Two of the appellants (at serial No. 13 and 14 of the annexure) have referred to two judgments, one of the Supreme Court and the other of the Bombay High Court, to contend that in view of the said decisions our decision earlier would require reconsideration. The decisions are Commissioner of Sales Tax v. Auriaya Chamber of Commerce (1986 Vol. 25 ELT 867 Supreme Court) and Shalimar Textile Manufacturing Pvt. Ltd. v.Union of India (1986 Vol. 25 ELT 625 Bombay).
7. The Supreme Court in the judgment cited supra dealt with a case where refund of duty had been claimed with reference to duty recovered under a provision of law which had been subsequently held ultra-vires of the statutory powers of the legislature enacting that legislation.
The Supreme Court upheld the view that in such circumstances the collection of duty was outside the statute and hence wholly illegal. It therefore, further held that in respect of such cases the claim for refund would not be covered by the provisions in the statute. We are therefore of opinion that the facts in the appeals before us are clearly distinguishable from the facts of the decision of the Supreme Court, since in the appeals before us the collection of duty cannot be said to have been under an invalid or ultra-vires provision and therefore outside the statute.
8. So far as decision of the Bombay High Court cited supra were may note that the said decision also dealt with the powers of a High Court exercising powers under its writ jurisdiction to grant relief without reference to the statutory provision regarding limitation. As mentioned earlier the powers of the lower authorities in the appeals before us as well as our own powers are derived under the Customs Act and the claims of the appellants have to be disposed of with reference to the provisions of that Act. We are therefore of the view that the orders of the lower authorities rejecting the refund claims of the appellants as barred by Limitation under Section 27 of the Customs Act were correct.
Accordingly these appeals are dismissed.