Greaves International Ltd. And … vs Union Of India (Uoi), B.V. Kumar, … on 21 June, 1985

Bombay High Court
Greaves International Ltd. And … vs Union Of India (Uoi), B.V. Kumar, … on 21 June, 1985
Equivalent citations: 1992 (39) ECR 326 Bombay
Author: S Pratap
Bench: S Pratap


S.C. Pratap, J.

1. Some time in November 1977 the first petitioner-companyGreaves International(hereinafter the Company) imported a consignment of five barrels of silicon oil from West Germany. At about the same time i.e. November 1977 the Company also imported silicon fluid. After complying with the requisite procedure and formalities, the Company paid in respect of the aforesaid two consignments countervailing duty in the sum of Rs. 23,5987- and 27.980.48R respectively. However, under Tariff Advice No. 13 of 1978 issued by the Central Board of Excise and Customs on 16th February 1978, the Company was not at all liable to pay the said duty. The Company thereupon made two separate applications for refund. The Assistant Collector rejected these applications on the sole ground that the same were not filed within six months and were, therefore, barred by time under Section 27(1) of the Customs Act, 1962. Possibly to obviate the frequently advanced contention that this Court should not entertain a writ petition unless a litigant first exhausts all the remedies available under the concerned statute, the Company herein instead of directly approaching this Court at that very stage preferred against the above refusal orders of the Assistant Collector of Customs, appeals to the Appellate Collector of Customs, who, however, rejected the same on the same ground of limitation. Against these rejections, the Company preferred three revision applications to the Government of India, Ministry of Finance, Department of Revenue. Of these, the revisional authority allowed one revision and remanded the proceedings covered thereunder to the Assistant Collector for providing the Company an opportunity to substantiate their claim and for him to then pass appropriate order in that behalf. The other two revision applications were, however, rejected by the revisional authority. It is against this latter rejection that the present writ petition under Article 226 of the Constitution has been filed.

2. Mr. Prakash D. Shah, learned Counsel for the petitioners, contends that the recent majority judgment of this Court in Appeal No. 108 of 1977 (I.T.C. Ltd. v. M.K. Chipkar and Ors. Coram: Lentin and Sawant JJ.) [1987 (10) ECR 531 (Bombay)] decided finally on 10th June 1985 covers this case in favour of the petitioner-company. Mr. M.I. Sethna, learned Counsel for the respondents, contends on the other hand that, that is not the correct position. According to him, the present case is not covered by the aforesaid majority decision. Now in the special facts and circumstances of this case, it is not necessary to go into the question whether the aforesaid majority decision covers or does not cover the instant case. On the facts and circumstances of this case I am satisfied that the petitioner-company is entitled to the relief claimed. In the circumstances, I would keep the contention of Mr. Sethna, learned Counsel for the respondents, on the validity of the aforesaid majority ruling expressly open for being canvassed or agitated in an appropriate case. This judgment or the order here below will not in any manner conclude the respondents in the aforesaid behalf. Still further in the facts and circumstances here, it is also not necessary to go into and decide whether the duty initially paid was under a mistake of fact or that of law because in either event I am inclined to grant the relief of refund otherwise pre-eminently well-deserved. At the very threshold, the amount was paid under mistake and on that there was no dispute even at the very threshold. Besides, Has writ petition is also admittedly well within three years of even the very first order dated 15th July 1978 of the Assistant Collector.

3. Coming then to the case proper, I find the Company taking prompt and diligent steps for refund of duty which it was, even according to the respondents, not liable to pay. Though there was in that behalf a delay qua Section 27 of the Customs Act, that bar would not necessarily come in the way of this Court exercising its jurisdiction under Article 226 of the Constitution. If this Court finds that the Company has taken all steps diligently and has also exhausted all the available remedies under the statute viz., the Customs Act, 1962 and has only thereafter approached this Court for justice, there is no good reason nor any legitimate justification for declining just and justified relief. Courts of justice would also expect a welfare State and a democratic government not to retain with it an amount not lawfully due to it but refund the same to one who has admittedly wrongly paid the same. Hence order.

4. This petition succeeds and the same is allowed. The impugned orders exhibits B, D, F and H to the petition are set aside and quashed. The order at exhibit ‘J’ to the petition is also set aside and quashed but only to the extent the same dismisses the present petitioner-company’s two revision applications in question against which dismissal the present petition is filed. The respondents are directed to refund to the first petitioner-company the amount of Rs. 235981- as also the amount of Rs. 27.980.48P. as expeditiously as possible and in any event latest by 31st December 1985. In the event of the aforesaid amounts not being refunded by 31st December 1985, the respondents will then pay to the petitioners interest thereon at the rate of 12 per cent per annum from 1st January 1986 till payment.

5. Rule is made absolute in terms aforesaid but, in the circumstances, with no order as to costs.

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