AI Structured Summary
Not yet generated for this judgment
Judgment
Swamikkannu, J.—These Writ Petitions coming on for hearing on this day upon perusing the petitions and the respective affidavits filed in
support thereof the order of the High Court dated 14-7-1981 and made herein, and the records relating to the prayer aforesaid comprised in the
return of the Respondents in all the petitions herein, to the Writs made by the High Court, and upon hearing the arguments of Mr. K.C. Rajappa
Advocate for the petitioner, in all the petitions and of Mr. P. Narasimhan, Standing Counsel for Central Government on behalf of the respondents
in all the petitions herein the Court made the following order :-
Where public bodies, under colour of public laws, recover people''s moneys, latter discovered to be erroneous levies the dharma of the situation
admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to
whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of ''alternative
remedy'', since the root principle of law married to justice, is ubi jus ibi remedium. The law ubi jus ibi remedium, becomes from this point of view
something more important than a mere tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose labours
gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds for more intently on providing
remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declaration of the Rights of Man or
Englishmen....The Constitution of the United States and the Constitution of the separate States are embodied in written or printed documents, and
contain declaration of rights. But the statesmen of America have shown an unrivalled skill in providing means for giving legal security to the rights
declared by American Constitutions. The rule of law is as marked a feature of the United States as of England.
Another point, in our jurisdiction, social justice is a pervasive presence, and so, save in special situations it is fair to be guided by the strategy of
equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by
consenting to restore little sums, taken in little transactions, from little persons, to whom they belong.
The above observations that are found in Shiv Shankar Dal Mills and Others Vs. State of Haryana and Others, are relied on by Mr. K.C.
Rajappa, learned Counsel for the petitioner in all the three writ petitions.
The petitioners in these writ petitions have come forward to claim refund of a portion of Import duty paid by them, which according to them,
was paid over and above what is due and payable. The duty was paid by the petitioners by mis-Interpreting the words ""stainless steel sheets in
coils"". The definition of that particular commodity was the subject matter of approach by the Assistant Collector of Customs for bringing the
commodity under iron sheets taxable with 100 per cent ad valorem and not 10 per cent, when it is construed as a strip. In the instant case before
us it is common ground the commodity had been described by the petitioner as ''stainless steel sheets in coils'' and yet in other communication to
the Central Government as well as other departments it was described as ''strips'' and not ''sheets'' though it might have been so described by him
and given such description under the column which is intended for the description of the commodity. In other words, in whatever name the rose is
called it is smelling. So, also in whatever name the iron commodity is called, whether it is ''strips'' or ''sheets'' with 3.5'' in thickness, and since,
according to Mr. Rajappa, there is no specific description of a sheet that it should conform to certain width or length and as in the instant case the
iron commodity is of the size of about 3.5'' breadth and 0.5'' in thickness and 3'' in length it is to be construed only as a strip. After all, when it is
used for making any product marketable then it has to be called as ''sheet''. The matter that has to be given weight is with respect to the definition
of a ''strip or sheet''. It does not matter whether it is called sheet or in a coil form of sheet. The law relating to this aspect has been applied by the
initial authority which imposed duty on the commodity and that is the reason why the petitioner herein had been approaching the Executive
authorities, including the Ministry, concerning the transaction of iron strips of this nature. ''Strip'' is described in the Concise Oxford Dictionary as
follows :-
a long narrow piece (a strip of card, paper, cloth, garden, territory,) narrow flat bar of iron or steel; (cartoon, sequence of small drawings, telling
comic or serial story in newspaper etc., (colloq) Clothes worn by members of football etc. team; ME. f. or cogl. w. MLG. strippe strap, thong,
prob. rel. to foil)"".
''Sheet'' is described in the Concise Oxford Dictionary as follows :-
Rectangular piece of linen cotton etc., used generally in pairs as inner bed cloths, broad more or less flat piece of thin material (a sheet of iron,
glass, paper, etc.,)., sheet copper, iron, metal, etc., (spread by rolling, hamering etc., into thin sheets)... Rope or chain at lower corner of sail for
regulating its position etc., space at bow or stern of open Boat..."".
According to Mr. K.C. Rajappa, learned counsel for the petitioner, when there is no specific description of a ''strip'' or ''sheet'' available in the
Rules or the Regulations of the Notification made under the specific provisions of the enactment by the Government Department concerning the
same, or by any authority authorised for the same, when the description is given by the dealer, however much he may prevaricate with respect to
the description, it is for the authority to decide whether the iron commodity is a ''strip'' or a ''sheet''. Mere prevarications of description which may
not be in accordance with the dimensions of the commodity does not in any way preclude the petitioner from getting the legal remedy or the benefit
which is given by law to him. Because of the wrong description he cannot be denied of the benefit which is conferred on him by the statute. This is
the pith and substance of the argument of the learned counsel for the petitioner, Mr. K.C. Rajappa.
On the other hand, Mr. P. Narasimhan, standing Counsel for the Central Government, in his arguments, submits that when there is a specific
indication in the initial order that had been passed against the petitioner holding the commodity as ''sheet'', it is but natural that the petitioner, who is
questioning the assessment of the duty in three writ petitions, ought to have preferred an appeal. Without preferring an appeal, after the expiry of
the period of limitation, if he had gone to the authorities, viz., the executive, organs as well as the Ministry, it is only the petitioner who has to blame
himself. Ignorantia legis neminem excusat. When there is a provision for appeal and when there is also an appellate forum, the person who is
aggrieved by the initial order has to avail that remedy. If he has not approached the appellate forum he cannot now turn round and say that at-least
he can be given an opportunity to put forth the case before the appellate forum. Even at the time when he approached the Ministry concerned and
when the Ministry has given a reply to him, it was six years since. The initial assessment was made. Therefore when the appeal ought to have been
preferred within three months from the date of order of assessment, even though and after six years a reply is given to the petitioner. The petitioner
had moved the ministry is concerned, that does not in any way help the petitioner.
This is what is stated on behalf of the respondents by Mr. P. Narasimhan.
The point for consideration in these three petitions is whether there are adequate grounds for ordering refund as prayed for by the petitioner?
Turning back to the observation regarding the law of limitation, the legal remedy that can be given to an aggrieved party is that where there is
Ubi Jus ibi remedium. In other words, the law Ubi jus ibi remedium becomes explicit in a glittering way, which may help us while approaching this
problem that is confronting us. We may first examine whether there is any provision that is available so as to give a remedy to the dispute. By a
statute the appeal time is fixed and that is three months from the date of the order. No appeal had been preferred against the order of the initial
assessment, declaring that the commodity is only sheet and not strip. We have already incorporated the meaning given in the Concise Oxford
Dictionary for the words ''Strip'' and ''sheet''. From whatever angle the commodity is approached with respect to the length, breadth and thickness
of the commodity and also whether it is pig iron or any other steel, or any other variety of iron with which the sheet or strip is made of, it need not
concern us. We are concerned here, whether the remedy has been asked for within the time fixed. Without preferring an appeal against the initial
order, the executive, authorities including the Ministry, had been approached. The fundamental duty of a citizen is to respect law, whether it is
substantial law, procedural law or the law of limitation. The law of limitation has prescribed three months'' time for preferring an appeal and that not
having been done, the petitioner having moved the executive authorities, including the Finance Ministry, can it be said that they are sufficient
grounds for not preferring an appeal within the period of limitation of three months, from the date of the order of the initial authority? The answer is
only in the negative.
Then the remedy asked for cannot be granted even on grounds of equity. A man who seeks equity has to come to Court with clean hands.
When the law gives the petitioner time for filing an appeal within three months from the date of initial order by affixing a Court fee of Rs. 1.62, in
the memorandum of appeal, it is not known as to why that remedy had not been resorted to by the petitioner in all these writ petitions. Apart from
that, the petitioner had approached so many people who are concerned or not concerned, which is not our purpose now to decide. But the judicial
organs, with which the appellate powers are vested, had not been approached. This is a flagrant violation of law. The petitioner had not taken
advantage of the provisions of law regarding appeal, which is also made a part and parcel of the order dated 6-3-1973 that had been
communicated to the petitioner herein while holding that the commodity is a ''sheet'' and not a ''strip'' and as such liable to pay excise duty at cent
per cent. That had become final.
Mr. K.C. Rajappa, learned counsel for the petitioner, has referred to this Court''s judgment reported in Cement Distributors Limited,
Dalmiapuram by its Power of Attorney Agent V.A. Sundararaman v. Deputy Commercial Tax Officer, Lalgudl, 1988 T.L.N.J. 33 wherein it is
observed as follows : -
''The organic law of the land is incorporated in the Constitution. So far as our country is concerned, it is a written Constitution and in drafting our
Constitution, we have followed mostly the provisions of the American Constitution and the Constitution of Ireland. It is this law, viz., the
Constitution of India, which is taken as the basis for the tripartite Government system, namely, Legislature, Executive and Judiciary. Therefore, it is
no doubt true that the provisions of the organic law of the land can be approached by a person only after exhausing all the remedies available under
the Statute. In the instant case, it is the imposition of tax on gunny bags that were used as packing materials for packing cement that is attacked on
the ground that such a classification cannot be the subject matter of tax under the TNGST Act.
Learned counsel for the petitioner submits that the decision reported in Ramco Cement Distribution Co. (P.) Ltd. Vs. The State of Tamil Nadu,
will squarely apply to this case. In that case the gunny bags that were used as packing material, have taken into account for taxable turn over, and
therein the Supreme Court held that the gunny bags, used as packing material, were not taxable. The ratio laid down in the above decision has to
be applied to this case also.
As regards the question of maintainability, as already pointed out when once the writ petitions are admitted it should be presumed that there is a
prima facie case on the averments made in the affidavits filed in support of these writ petitions. These writ petitions have been admitted on 7-9-
1981 and it is too late to hold that the writ petitions are not maintainable and that the petitioners should seek their remedy before the appropriate
authority as prescribed under the statute.
Mr. Rajappa, learned counsel for the petitioner, quoting the above observation of this court, further states that the eight years pendency of these
writ petitions should not be taken into consideration, while there had been some stray hopes on the part of the petitioner, which made him to enter
into the fields which are not remediable fields as contemplated by law. Since in these days people think that more things are wrought by
approaching the executive body than the judicial organs and in that way the petitioner herein has misguided himself. That should not stand in the
way of his getting the proper remedy available to him under the provisions of law. I am unable to uphold this contention. It is not only untenable but
also unsustainable. The observations made in Cement Distributors Ltd., by its Power of Attorney Agent V.A. Sundararaman v. Deputy
Commercial Tax Officer, Lalgudi, 1988 T.L.N.J. 33, extracted above, will not be applicable to the facts of the instant case before us. In the instant
case, in spite of the fact that in the order communicated to the petitioner herein it was made known to him that within 90 days he had to prefer an
appeal, he had failed to do so, but had utilised six long years in approaching the executive organs as well as the Ministry connected or unconnected
with the issue that is involved in the claim for refund of the excess amount, according to the petitioner paid over and above that is due and payable
to the Department, since he had described the ''strips'' as ''sheets'' in his petitions. This Court perused the decision reported in 9 Excise and
Customs Cases, 247 as well as the petition brought to the notice of this Court dated 11-8-1972 given to the Assistant Collector of Customs,
appraising Department (Refund Section), Customs House, Pondicherry by the petitioner and also another letter dated 15-5-1972 sent to the
Assistant Collector of Customs, Appraising Department (Refund Section), Custom House, Madras 1: and then the order in original dated 3-2-
1973 in C.No. VIII/20/30/72, Pondicherry, wherein the Assistant Collector of Central Excise and Customs, I.D.O., Nagapattinam, had held that
the importer had imported only stainless steel sheets and therefore the benefit of exemption under Government of India, Notification No. 118/65,
dated 20-8-1965 cannot be extended to the importer and that the two claims preferred by them for refund of import duty were rejected. Then
finally on 6-3-1973 the Assistant Collector of Customs, Madras in Order No. S.25/1689/72 has held that the question of according concessional
assessment in terms of Notification 118/65 does not arise and therefore the claim of the petitioner was rejected as inadmissible. It is in this order
the Assistant Collector of Customs, Madras-1, has made it known to the petitioner that an appeal against that order in terms of Section 128 of the
Customs Act, 1962 lies to the Appellate Collector of Customs, Madras-1, within three months from the date of its receipt and that any appeal
should bear court fee stamp of Rs. 1.62. It is this remedy that is available to the petitioner in all these writ petitions byway of appeal. Therefore, in
the instant cases, the contentions raised on behalf of the petitioner are unsustainable and as such they are liable to be rejected and are hereby
rejected.
There are no merits in all these writ petitions, and they are dismissed. Under these circumstances, there will be no order as to costs.