Gujarat Metal Box Co. vs Cegat

Pendse, J.—The petitioner imported rubber blankets for Printing Press and the goods were cleared by levy of 100% duty + 20% under Customs Tariff Item No. 40/ 16(1). The bill of entry was failed on July 27, 1979 and the goods were cleared. On March 3, 1980, the petitioners filed refund claim for Rs. 48,129.20 on the ground that the rubber blankets were classifiable under Customs Notification No. 159 and attracted duty at 40% only. The Assistant Collector rejected the claim by order dated March 24, 1980 on the ground that the refund application was filed beyond statutory period of limitation prescribed under sub-section (1) of Section 127 of the Customs Act. The petitioners carried appeal before Customs Excise & Gold (Control) Appellate Tribunal but the appeal ended in dismissal, by order dated April 299, 1983. The two orders are under challenge in this petition filed under Article 226 of the Constitution of India.

It is not in dispute that levy of duty under Tariff Item No. 40/ 16(1) was erroneous and the liability of the petitioner was only to pay duty at 40%. The refund application was turned down on the ground of limitation. It is now well settled by catena of decisions of this Court that though the Assistant Collector is bound by the provisions of Section 27 of the Act, the limitation has no application to grant of relief in writ jurisdiction under Article 226 of the Constitution of India it it is established that the duty was recovered without any authority of law. In these circumstances we do not see any reason why the petitioners should not be granted the relief.

Shri Desai, learned counsel appearing on behalf of the Department, submitted that it is necessary to remand the matter back to the Assistant Collector to ascertain the exact amount of refund. The learned counsel further submitted that the Assistant Collector will have to examine the applicability of amended provisions of Section 27 of the Act before granting refund. We are not prepared to accede to the latter part of the submission of the learned counsel for more than one reason. In the first instance, the amount of refund sought is negligible and secondly, the petition has remained pending in this Court for 10 years for no fault of the petitioners. In these circumstances it would be unjust to deprive the petitioners of right to refund. Though we are not permitting the Department to examine the amended provisions of Section 27 of the Act on the peculiar facts and circumstances of this case, it is necessary to remit back the matter to the Assistant Collector to ascertain the exact amount of refund.

Accordingly petition succeeds and the order dated 24, 1980 of Assistant Collector and order dated April 29, 1983 of the Customs, Excise & Gold (Control) Appellate Tribunal is set aside and the proceedings are remitted back to the Assistant Collector only for the purpose of calculating the exact amount of refund payable to the petitioners. The Asstt. Collector shall ascertain the amount and make refund within four weeks from the date of receipt of this writ. In the circumstances of the case, there will be no order as to costs.