# MADRAS RUBBER FACTORY LTD v. THE UNION OF INDIA & ORS

- **Citation:** [1976] 2 S.C.R. 864
- **Court:** Supreme Court of India
- **Decided:** 1976
- **Case number:** Special Leave from the Orders Nos. 4844-4848 of 1972
- **Bench:** K. K. Mathew, P. K. Goswami, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madras-rubber-factory-ltd-v-the-union-of-india-ors-6563
- **Pages:** 4

## Headnote

Customs Act-Section 270)-Limitation for refund of claims.
"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 V.P. Latex is an item of raw-rubber covered only
by item 39 of the Indian Tariff Act 1934 preferred refund-claim under section
27 (1) of the customs Act before the Assistant Collector, which wa~ dismissed
on the ground of limitation. The appeal under section 128(1)(b) and the
Revision failed.
Dismissing the appeals, by special leave the Court
HELD : In the instant case, there was nothing to show that duly was paid
under protest, general or specific and therefore, the claim wa9 not within the
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period of limitation. The view taken by the authorities on the question of limitation was correct.
[867-DE]
01111/op llldia Ltd., etc. v. Union of India, [1976] (2) S.C.R., P. 98 referred
to.
CML APPELLATE
JURISDICTION:
Civil
Appeal Nos.
15651569/73.
E
Appeals by Special Leave from the Orders Nos. 4844-4848 of 1972
clated 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.
F

## Text

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864
MADRAS RUBBER FACTORY LTD.
v.
THE UNION OF INDIA & ORS.
December 3rd, 1975
(K. K. MATHEW, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.J
Customs Act-Section 270)-Limitation for refund of claims.
"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 V.P. Latex is an item of raw-rubber covered only
by item 39 of the Indian Tariff Act 1934 preferred refund-claim under section
27 (1) of the customs Act before the Assistant Collector, which wa~ dismissed
on the ground of limitation. The appeal under section 128(1)(b) and the
Revision failed.
Dismissing the appeals, by special leave the Court
HELD : In the instant case, there was nothing to show that duly was paid
under protest, general or specific and therefore, the claim wa9 not within the
D
period of limitation. The view taken by the authorities on the question of limitation was correct.
[867-DE]
01111/op llldia Ltd., etc. v. Union of India, [1976] (2) S.C.R., P. 98 referred
to.
CML APPELLATE
JURISDICTION:
Civil
Appeal Nos.
15651569/73.
E
Appeals by Special Leave from the Orders Nos. 4844-4848 of 1972
clated 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.
F
The Judgment of the Court was delivered by
G
H
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 Excis~ Act, 1944
is also charged if the article imported is not treated as raw-mbber. 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 pursu~
ant 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
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MADRAS RUBBER FACTORY v. UNION (Untwalia, !.)
865
Act, 1962-hereinafter 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. 3,74,879.49 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
3t months
50,305 ·53
24-6-1968
2.
D. No. 1024 dated
27-6-69
3 months
60,339 ·97
18-9-1968
3. D. No. 1132 dated
8-4-69
2 months
1,61,615 ·10
21-8-1968
,~
4. D. No. 1931 dated
10-4-69
1 month
50,512 ·71
23-7-1968
5.
D. No. 68 dated
10-4-69
4 months
52,106 ·18
1-6-1968
3,74,879 ·49
Under section 27 (1) of the Act the application for refund had to
be made before the expiry of six months from the date of payment of
dMty, the date of payment being the date of the biUin 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 128 ( 1) (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 Customs Act, 1962, 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. v.
Union of India & Ors.(1~ 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 hav-
. ing 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-
(1) [1976] (2) S.C.R. 98.
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866
SUPREME COURT REPORTS
[1976] 2 s.c.R.
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
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 Cpllector 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 Qr
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 beh11lf.
( 4) Save as provided in section 26, no claim for refur:d
of any duty shall be entertained except in accordance with
the provisions of this section.
The appellant's case obviously and admittedly was not covered by subsection (3) as it had not challenged the order of assessment in any
appeal or revision. Nor was it a case where any duty V{as 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. Ultimatdy this
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MADRAS RUBBER F,ACTORY v. UNION ( Untwalia, !.)
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.
Ht<_nce under tpe
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, l;ut
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 impOFted 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 thre_e were imported after the
writirig of this letter by the appellant to the Asstt.
Collec~or 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 Gov+. should be directed to refund
the excess amount of Rs. 3,74,879.49 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 27(1) 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 to be incorrect.
In the result the appeals fail and are dismissed. There will be no
order as to costs.
S.R.
Appeals dismissed.
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