Sec. 27 of the Customs Act, 1962, does not apply to cases where the assessment is illegal and without jurisdiction. The collection of excess duty without authority of law is contrary to Art. 265 of the Constitution.

RAMANUJAM, J

The appellant herein, a proprietory concern, is carrying on business as manufacturers of hospital equipments etc. It obtained a licence for the import of stainless steel sheets in coils as an actual user. The appellants on the basis of the said licence imported certain consignments of stainless steel between September, 1969 and October, 1971. On the said consignments, import duty was levied under Item 87 of the Tariff at 100 per cent.ad valorem. After payment of the said duty and after clearing the consignment. the appellant came to know that the consignment of stainless steel imported by it is entitled to the benefit of Notification No. 118-Customs, dated 20-8-1965, as amended by Notification No. 138-Customs, dated 25-8-1965, which reduces the import duty to 10 per cent.ad valoremin cases of import of stainless steel strips of 250 millimeters of width or more. On the ground that the stainless steel imported by the petitioner was stainless steel strips of 1, 000 millimeters width, the appellant on 29-9-1972, claimed refund of 90 per cent. of the duty as excess duty collected from it. The refund application filed by the appellant on 29-9-1972, was based on the said Notification No. 118, dated 20-8-1965, which granted concession of lower rate of excess duty in the case of import of stainless steel strips exceeding 200 millimeters in width. The appellant's application for refund was rejected by the Assistant Collector of Customs on the ground that the application for refund having been filed after the expiry of the time-limit of six months prescribed under Sec. 27 of the Customs Act, 1962, the same was barred and, therefore, the appellant's claim for refund cannot be considered on merits.

2.There was an appeal to the Appellate Collector of Customs. That appeal also failed, the appellate authority taking the view that the provisions of Sec. 27 fixing six months period for preferring a claim for refund being mandatory, the appellant's application for refund cannot be entertained especially when the payment of the import duty by the appellant was not under protest. Then, there was a revision to the Government of India under Sec. 131 of the Customs Act. The revisional authority also took the view that the appellant not having claimed refund within the time limit contemplated by Sec. 27 of the Customs Act, the appellant's claim for refund has rightly been rejected by the authorities. As against the order dated 10-8-1973 of the revisional authority, the appellant filed W.P. No. 2185 of 1974. The said writ petition was dismissed at the admission stage by Ismail, J.

3.The view taken by the learned Judge was that Sec. 27(1) of the Customs Act having prescribed a time limit for preferring a claim for refund and the appellant not having made the claim within the prescribed time limit and it not having paid the import duty under protest, its claim for refund has rightly been rejected by the authorities constituted under the Act. The said view of the learned Judge has been challenged in this writ appeal.

4.The learned counsel for the appellant contends that the appellant's claim cannot be said to be time barred under Sec. 27(1), that Sec. 27(1) will apply only to a case where there is a valid assessment but not to a case where the assessment itself will be illegal and without jurisdiction, that in this case, the goods imported by the appellant have been wrongly treated as stainless steel sheets while in fact they are stainless steel strips which are to be assessed at a lower rate of 10 Per cent.ad valoremas against 100 per cent.ad valoremfor stainless steel sheets, that the assessment in respect of the stainless steel strips imported by it treating them as stainless steel sheets will be clearly without jurisdiction and that in respect of such assessment made without jurisdiction, the limitation provided for under Sec. 27, cannot apply.

5.In support of the appellant's contention that Sec. 27(1) will not apply to its claim f