S. Duggal, Member (J)

1. The short question, falling for determination in this appeal, filed by Miles India Ltd., Baroda (Gujarat) is as to whether the order passed by firstly; the Assistant Collector of Customs and then by the Appellate Collector of Customs, Bombay, on appeal being filed before him, whereby they declined to entertain the claim for refund, filed by the appellant on the same being barred by time, as having been made after expiry of the period of six months, stipulated u/s 27 of the Customs Act, 1962 are legally sustainable or not.

2. Brief facts, as revealed by the grounds set out in the revision petition, as it was filed before the Central Government under the provisions of Section 131 of the Customs Act (as then applicable) and now received by this Tribunal and to be disposed of as such are, that the appellants imported an article described as ; Indian Chemical Reagent Strips from abroad and that there are repetitive imports and it has been their persistent contention that these are to be classified under tariff item 90.17/18 of Indian Customs Tariff on the ground that the same were diagnostic medical tools. It is further revealed that they contended alternatively that if the aforesaid goods were treated to be not falling under tariff item No. 90.17/18 then they ought to be classified under tariff item No. 38.10/19 as "chemicals not elsewhere specified".

3. However, the Custom authorities throughout assessed these goods under tariff item No. 48.01/21 holding it to be falling under the heading "Papers and paper board all sorts". The appellants pleaded to have been paying custom duty from time to time on the imports made by them, as assessed by the custom authorities. It goes without saying, as it is no where pleaded, that these payments were made without protest.

4. It is now stated that while this controversy was going on, the appellants acquired knowledge of a Government Notification being Notification No. 198/Cus./l, dated 17-9-77 which reads as follows :-

"Imported filter paper and base filter paper required for the manufacture of impregnated filter paper falling under sub-heading No. (1) of Heading No. 48.01/21 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) are exempted from the whole of the Additional Duty leviable thereon under Section 3 of the said Act."

5. The appellants now contend that by virtue of this notification, the goods were not liable to be subjected to any customs duty and they consequently lodged a refund claim with the Custom authorities for the entire period falling between 10-2-78 to 10-8-80, totalling to Rs. 5,86,465.16 Ps, as detailed in exhibit 'B' on page 13 of the file. It is contended that while submitting its refund claim, the appellants had clearly mentioned that this was being submitted without prejudice to their rights or contentions, particularly that the goods imported by them were to be classified under item No. 90.17/18 of the Customs Tariff and that the refund claim was being filed for the preceding three years on the ground that the additional customs duty was paid by them under a mistake of law and accordingly the law of limitation under the Limitation Act, 1963 ought to apply in this case, and that they had further specified that they were claiming eligibility of the benefit of the exemption notification for the period 10-2-78 to 10-8-80 and intend doing so far all future imports also, but this could not be treated that they were giving up their original contention that the imported goods were classifiable under item No. 90.17/18.

6. The Assistant Collector of Customs, by his order dated 30-3-81 rejected the application for refund as being time barred, mentioning that refund claim was received, vide annexure `1' with his order, on 16-2-81 i.e. after the expiry of six months of the time of payment and as such was beyond the time limit stipulated by Section 27 of the Customs Act, 1962. The appeal, filed to the Appellate Collector of Customs was also rej