1980 (11) TMI 48

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....g refund of C. V. duty paid on consignments of silicone oil/silicone fluid in all these three cases, and in the case covered by F. No. 371/3001/78-Cus. II, the Government observe that the appeal failed on account of limitation under Sec. 128 of the Customs Act, 1962. In the other two cases, the claim failed on account of limitation under Sec. 27 (1) of the aforesaid Act. The break-up is as follows :- 1. F. No. 371/3001/78-Cus. II Time barred under Section 128 Date of communication of the order-in-original.   9-3-1978   Date of filing of the appeal   1-7-1978   Delay beyond three months but within 6 months.   No explanation for delay 2. F. No. 371/3002/78-Cus. II Time barred ....

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....the goods were not liable to C.V. duty. The Government would have gone into the question of excisability of the product in question in detail in order to determine the validity of their contentions but for the reasons set out hereunder. 6. The Government observe that all these claims are barred by limitation either under Section 27 of the Customs Act, 1962 or under Section 128 ibid. having been filed after the period of limitation prescribed under the Act had expired. The advocate at the time of hearing had argued that it is a well settled principle that if the goods are held to be non-excisable, then the time limit under Sec. 27(1) of the Customs Act, 1962 becomes inapplicable and the claims are guided by common law. It has also been ur....

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....Items were under the excise net, clarifying that if an assessing authority classifies a non-excisable goods as excisable and levy duty on the same the said authority crosses the jurisdiction as such levy is not authorised under the law. It could be argued that in such cases the time bar under Section 27 would not apply because assessment itself is ab initio void. This position has undergone a change after the introduction of the Item 68 of the tariff. The Government also observe that the quasi-judicial authority functioning under the Customs Act cannot ignore the same Act and take recourse to the general law of limitation for the purpose of grant or refund. If the petitioners were entitled for a refund and if such right of refund is conferr....