Bombay High Court
Tata Engineering And Locomotive ... vs Union Of India (Uoi), Cc And Anr. on 24 November, 1993
Equivalent citations: 1994(54)ECR57(BOMBAY)
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT S.P. Kurdukar, J.
1. By this Writ Petition, under Article 226 of the Constitution of India, the Petitioners seek to challenge the Order dt. 12.7.1982 passed by the Asstt. Collector of Customs (issued on 29.7.1982) and on Appeal confirmed by the Appellate Authority vide its Order dt. 6th November, 1982, rejecting the claim of the Petitioners for refund of customs duty paid in excess due to arithmetical error.
2. At the outset, it may be stated that the Respondents have not filed any return in the present petition. According to the Petitioners, the goods were imported under Import Licences OGL/3/80 in April 1981. The said goods under OGL were allowed for actual user only. Copy of invoice (Ex. 2) is annexed to the affidavit of Shri Ramesh Girija Kulal dt. 7th September, 1992. It is further averred by the Petitioner in the said affidavit that at no stage these goods are sold to outsiders and the Petitioner No. 1 has not passed the incidence of duty to consumer. It was further stated that the Petitioners made use of the imported goods for the manufacture of end-products i.e. commercial vehicles.
3. According to the Petitioners, they imported one case of spares for grinding machine per s.s. 'PIOTIERS' and filed a B/E for home consumption dt. 9th June, 1981 in respect of the said goods. The Customs Authorities assessed the said goods on the basis of the customs duty payable in respect of such goods and the Petitioner No. 1 paid customs duty of Rs. 1,84,646.42 on 4th July, 1981 so assessed. It was then averred by the Petitioners that the customs duty payable in respect of the said goods was actually Rs. 42,646.42 and not Rs. 1,84,646.42. Thus, there was excess payment of Rs. 1,42,000/-. Realising their arithmetical mistake, the Petitioners on 15th June, 1982 made an application to the Respondent No. 3. Asstt. Collector of Customs, In-charge of Refund Section, claiming refund of Rs. 1,42,000/-.
4. The 3rd Respondent by his Order dt. 12th July, 1982 (Ex. C) rejected the claim of the Petitioners solely on the ground that the same was barred under Section 27(1) of the Customs Act, 1962. The rejection Order proceeds on the footing that the Petitioners' application was made beyond a period of six months. The Petitioners carried an Appeal to the Appellate Authority, but however, the Appellate Authority vide its Order dt. 6th November, 1992 rejected the Appeal and confirmed the Order passed by the Asstt. Collector. It is against these Orders the present Writ Petition is filed by the Petitioners.
5. Mr. Shroff, the Ld. Counsel appearing in support of this petition drew our attention to copies of the B/E (Ex. 1) annexed to the affidavit of Shri Ramesh Girijya Kulal dt. 7th September, 1992. On calculations, Counsel urged that there was a bona fide mistake in calculations in the present case. In the presence of the Counsel for the Respondents calculations were made by him. After reading calculations it is obvious that the customs duty that is payable by the Petitioners was Rs. 42,646.42. As against this, they have paid Rs. 1,84,646.42. Thus, excess payment made by the Petitioners comes to Rs. 1,42,000/-.
6. Now, the question is if such an arithmetical mistake is crept in the assessment of customs duty on B/E, whether the Petitioners should be denied the refund claim solely on the ground of limitation as prescribed under Section 27(1) of the Customs Act. We are of opinion that this is a fit case where this Court must exercise its jurisdiction under Section 226 of the Constitution of India and must direct the Respondents to refund the excess duty paid by the Petitioners to the tune of Rs. 1,42,000/-. Now the question is whether we should make Order of refund in this Writ Petition. Ordinarily, it could have been passed but in view of amended provisions of Section 27 of the Customs Act, appropriate Order will have to be passed by the Appropriate Authority.
7. Mr. Shroff for the Petitioners urged that in case of arithmetical mistake, amended provisions of Section 27 of the Customs Act would not be attracted and the question of unjust enrichment would not arise. As against this, Mr. Desai, Counsel for the Respondents urged that assuming that there is arithmetical error in the assessment of duty, yet, after enforcement of amended provisions of the Act from 27.9.1991, every such application for refund has got to be dealt with in accordance with the provisions of Sub-section (2) of Section 27. Mr. Desai, therefore, urged that it is necessary for the Petitioners to make an application to the Appropriate Authority and upon such application, the Appropriate Authority will pass an Order in accordance with law.
8. After hearing Counsel for the parties, we are of the opinion that after enforcement of the amended provisions of Section 27 of the Customs Act, it would be necessary for the Petitioners claiming refund to follow the procedure prescribed therein. In these circumstances, the Petitioners will have to make an application to the Appropriate Authority in terms of Section 27 of the amended provisions of the Customs Act and if such an application is made, the Competent Authority will dispose of the same within six months.
9. It is however, made clear that on the basis of the averments in the affidavit of Shri Ramesh Girijya Kulal, dt. 7th September, 1992, it is concluded that the Petitioners have imported goods for their own use and in fact they have used the same in their factory for manufacturing end-products. They have not sold the goods to any outsider and, therefore, the question of passing incidence of duty on the consumer does not arise.
10. In the result, petition succeeds. The impugned orders of rejection of the refund application are quashed and set aside and the Petitioners are directed to make fresh application in terms of Section 27 of the Customs Act to the Appropriate Authority. If such an application is made by the Petitioners, the said Authority shall dispose of the same within six months and will not reject the same on the ground of limitation. This Order is made bearing in mind the peculiar facts and circumstances of this case.
Rule made absolute in the above terms. No Order as to costs.