JUDGMENT

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 use 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 Indian 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 Excises and Salt 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 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 Rupees 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 claim for refund Delay Amount

1. D.No. 1644 dated 24-6-1968 8-4-69 3 1/2 months 50,305.53

2. D.No.1024 dated 18-9-1968 27-6-69 3 months 60,339.97

3. D. No. 1132 dated 21-8-1968 8-4-69 2 months 1,61,615.10

4. D.No. 1931 dated 23-7-1968 10-4-69 1 month 50, 512.71

5. D.No. 68 dated 1-6-1968 10-4-69 4 months 52,106.18

3,74,879.49

2. Under Section 27 (1) of the Act the appellant 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 639 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 Sec. 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 appellant orders. The revision applications are, therefore, rejected." These appeals were filed from the said order after obtaining special leave of the Court.

3. Mr. D. V. Patel, learned counsel for the appellant submitted that in view of the recent decision of this court in Dunlop India Ltd. v. Union of India, Civil Appeals Nos. 1446, 2746/72 decided on 6-10-1975, 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 particular 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 t