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Judgment
The Petitioner in all these writ petitions is the same. The Petitioner has filed these writ petitions for issue of a writ of mandamus directing the
respondents to refund the sum of Rs. 1,46,918.81 being the amount collected as additional duty or countervailing duty under Item 23A(4) of the
Central Excise Tariff on Bill of Entry No. D. 1211 dated 28-4-1982 (W.P. No. 2914/1984); Rs. 31,195.78 on Bill of Entry No. D. 1212 dated
22-3-1980 (W.P. No. 2915/84); Rs. 1,66,281.81 on Bill of Entry No. D. 262 dated 5-7-1982 (W.P. No. 2916/84); Rs. 26,648.16 on Bill of
Entry D. 1105 dated 19-12-1980 (W.P. No. 2947/84) and Rs. 26,648.16 on Bill of Entry D. 1106 dated 19-12-1980 (W.P. No. 2948/84).
The Petitioner is a manufacturer of synthetic gems having its factory at Mettupalayam, Coimbatore District. The Petitioner imported silica
crucibles under a valid import licence from France. The Petitioner filed Bill of Entries D. 1211, D. 1212, D. 262, D. 1105 and D. 1106. The
Assistant Collector of Customs assessed the goods under Customs Tariff Heading 70.21 and under Sec. 23A(4) of the Central Excise Tariff for
countervailing or additional duty and that the Petitioner paid the duty as demanded and cleared the consignment. Even though the imported items
were silica crucibles, the Assistant Collector of Customs classified the goods for assessing the duty under Heading No. 70.21 which relates to
other articles of goods"", in view of Chapter Note 3 of Chapter XVII, which states ""for the purpose of this schedule ''glass'' is to be taken to
extend to fused quartz and fused silica"". Item No. 23A(4) of the Central Excise Tariff provides that for other glass and glassware including
tableware the duty shall be as prescribed therein. Under Sec. 3 of the Customs Tariff Act, any article which is imported into India shall, in addition,
be liable to a duty (hereinafter in this Section referred to as the additional duty) equal to the Excise duty for the time being leviable on a like article if
produced or manufactured in India and (if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which
the imported article shall be so liable shall be calculated at that percentage of the value of the imported article"". It is manifest that under the
Customs Tariff Act, the additional duty should be equal to the excise duty on a like article manufactured in India.
The Petitioner filed a claim petition for refund on the ground that silica crucibles were liable to duty only under Heading 69.03 of the Customs
Tariff Act and no additional duty was leviable under Item 23 of the Central Excise Tariff, since Heading 69.03 covers crucibles and the goods
were not glassware and hence not liable to additional duty under Item 23 of the Central Excise Tariff. The Assistant Collector of Customs
(Refunds) rejected the claim of the Petitioner. The appeal preferred by the Petitioner to the Appellate Collector of Customs was also rejected. The
Petitioner then preferred a revision to the Central Government, which was later transferred to the Customs, Excise and Gold (Control) Appellate
Tribunal, constituted on 11-10-1982 under the Customs Act. The Tribunal by its judgment dated 5-1-1983 in Order No. D. 12/83 held that since
the fused quartz and fused silica have to be considered as ''glass'' under Chapter Note 3 in the Customs Tariff Act, 1975, it would be logical to
conclude that but for this chapter note, fused quartz and fused silica would not ordinarily be considered as glass and, therefore, in the absence of
corresponding Note or explanation in the Central Excise Tariff, ''glass'' in Item 23A would not ordinarily include the fused quartz or fused silica
and, therefore, not liable to countervailing duty.
The Petitioner has been importing silica crucibles from 1976 onwards and has been paying the duty as demanded by the Respondents under the
mistaken impression of law that they were classifiable under Item 23A(4) of Central Excise Tariff (in short CET) for the purpose of countervailing
duty. It is only after the judgment delivered by the Tribunal, as aforestated, the Petitioner came to know that the Petitioner had made payments
under the mistaken impression of law and that the authority had no jurisdiction to levy countervailing duty on the goods imported by the Petitioner
and that if at all any levy had been collected under Item 23A of CET, it should be without authority of law and without jurisdiction and hence it
should be refunded to the Petitioner. Under Sec. 27 of the Customs Act, hereinafter referred to as the Act, the claim should have been made
within a period of six months from the date of payment of duty and while so if any attempt is made by the Petitioner by approaching the authorities
for refund that would be of no avail and moreover since duty had been collected without there being any sanction of law, the Petitioner is entitled to
invoke the jurisdiction of this Court. In these circumstances, the Petitioner has filed the above Writ Petitions claiming refund of the duty paid under
mistake or duty collected by the Respondents without any jurisdiction or without any authority of law.
During the pendency of the above Writ Petition, the Central Excises and Customs Laws (Amendment) Act, 1991 which was published in the
Gazette of India Extraordinary Part II, Sec. 1 No. 54 dated 18th September, 1991, came into force. Sub-sections (2) and (3) of the substituted
Sec. 27 which are relevant for the purpose of this case, are as follows :
(2) If, on receipt of any such application, the Assistant Collector of Customs is satisfied that the whole or any part of the duty paid by the
applicant is refundable, he may make an order accordingly and that the amount so determined shall be credited to the Fund.
Provided that the amount of duty as determined by the Assistant Collector of Customs under the foregoing provisions of this sub-section shall,
instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to :-
(a) the duty paid by importer, if he had not passed on the incidence of such duty to any other person;
(b) the duty on imports made by an individual for his personal use;
(c) the duty borne by the buyer, if he had not passed on the incidence of such duty to any other person;
(d) the export duty as specified in section 26;
(e) drawback of duty payable under sections 74 and 75;
(f) the duty borne by any other such class of applicants as the Central Government may by notification in the Official Gazette, specify;
Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the
incidence of duty has not been passed on by the persons concerned to any other person.
(3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any
other provision of this Act, or the regulations made thereunder or any other law for the time being in force, no refund shall be made except as
provided in sub-section (2)"".
Sections 28C and 28D which are also relevant for the purpose of this case, are as follows :-
28C. Price of goods to indicate the amount of duty paid thereon. - Not-withstanding anything contained in this Act or any other law for the time
being in force, every person who is liable to pay duty on any goods shall, at the time of clearance of the goods, prominently indicate in all the
documents, relating to assessment, sales invoice and other like documents, the amount of such duty which will form part of the price at which such
goods are to be sold.
28D. Presumption that incidence of duty has been passed on to the buyer. - Every person who had paid the duty on any goods under this Act
shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods.
After the said amendment came into force, the respondents filed a counter-affidavit stating that in view of the amendments of the Central Excises
and Customs Laws Amendment Act, these writ petitions are not maintainable and that under Sec. 27(3) of the Amended Act, no refund could be
made except as provided in sub-sec. (2) of Sec. 27 of the Amended Act. Hence, the Petitioner should file an application before the Assistant
Collector of Customs and that the Assistant Collector of Customs alone is entitled to scrutinise the application as per the provisions of the
Amended Act and in those circumstances the Writ Petitions are not maintainable. In view of the provisions of the Amended Act, the claim of the
Petitioner has to be examined only by the Assistant Collector of Customs to find out as to whether the claim in these writ petitions was not barred
by any limitation and that the incidence of duties was not transferred to any one in the course of trade and that under Sec. 28 of the Customs Act
to save the limitation, the Petitioner ought to have paid disputed duty under protest.
7A. The Petitioner in his supplementary affidavit clarified that the use of silica crucibles was in the manufacture of synthetic gems by the Petitioner
and also clarified that the silica crucibles were not sold or traded in by the Petitioner and hence the question of passing on the duty liability to the
customers of the Petitioner does not arise. The Petitioner also furnished the process of manufacture of synthetic gems where the use of silica
crucibles is necessary. It is also stated that the Petitioner does not sell the silica crucibles imported by it and also does not trade in these silica
crucibles and that these crucibles are meant solely for the use in the Petitioner''s factory for the manufacture of synthetic gems and these crucibles
are used as refractory goods which could withstand very high industrial temperatures which was necessary for the manufacture of synthetic gems.
In those circumstances, the Petitioner claims that he is eligible for refund under (a) or (b) of sub-section (2) of Sec. 27 of the Act.
The only defence that was raised by the respondents is that in view of the amended Act, Central Act 40 of 1991, the Petitioner has to make an
application as contemplated under Sec. 27(3) of the Amended Act before the Assistant Collector, who should follow the procedure prescribed
under Sec. 27 of the Act for the purpose of deciding as to whether the Petitioner is entitled to the relief of refund of claim made by him. It is the
case of the respondents that unless there is adjudication as contemplated under Sec. 27 of the amended Act, the Petitioner is not entitled to refund.
It is also stated that without there being any application for refund before the statutory authority, no relief can be granted by way of refund.
Mr. Habibulla Badsha, learned senior counsel appearing for the Petitioner represents that the doctrine of unjust enrichment has no application
where the imported goods are either consumed by the petitioner or used in the manufacture of other products. It is the case of the Petitioner that
the imported goods are not sold to third parties and that they are used for the manufacture of synthetic gems as narrated hereinabove and
consequently the Petitioner is entitled to refund, by reason of the provisions contained in Sec. 27(2)(a) and (b) of the Act. It is in these
circumstances, learned senior counsel referred to the decision of the Bombay High Court in Solar Pesticides Pvt. Ltd. Vs. Union of India (UOI), .
The dispute in that case relates to the recovery of countervailing duty that is to say additional customs duty in respect of copper scrap so imported
by the Petitioners therein. The Petitioners therein were denied the benefit of exemption notification for the purpose of levy of additional duty of
customs at the time when they imported copper scrap. Thereafter, the Petitioner filed applications for refund of the additional duty of customs. But
the refund applications were rejected and that was sought to be challenged in that writ petition. During the pendency of the writ petition, the
amendment Act came into force. Then the plea that was taken up therein was that although the Petitioners therein would be entitled to the refund
claimed by them their claim had to be considered in the light of the Amendment Act (Central Act 40 of 1991). It is in these circumstances, the
Bombay High Court had occasion to consider the provisions of Sec. 27 of the Amended Act and observed as follows :-
Hence the entire scheme is designed for a situation where (1) the importer of goods after clearing the goods on payment of duty, sells these goods
to others. In this process either he directly passes on the incidence of duty to his buyer or does not. Only in the latter case will the importer get the
refund. Otherwise, the refund will go to the buyer or to the Consumer Welfare Fund as per the Sections. (2) If the duty is passed on to the buyer,
the right to recover the duty is also passed on to the buyer of the imported goods : Provided that the buyer has not in turn, sold these goods and
passed on the duty to the next buyer. (3) The converse situation contemplated is where the importer uses the goods himself. Here there is no
question of passing on the incidence of duty to anyone else since the goods imported are not sold to any one else. Hence he can get the refund"".
[para 18]
Therefore, the question of unjust enrichment arises under the amended scheme when refund is asked for by a person who has sold the imported
goods and in the process directly passed on the burden of duty to the buyer. Clauses (a), (b) and (c) of the proviso to Section 27(2) and the
presumption laid down u/s 28D make this very clear"". [para 19]
In the present case the imported copper scrap has not been sold by the Petitioners to anybody. They have used the scrap themselves for the
manufacture of chemicals. The Petitioners have therefore not passed on the duty paid by them on copper scrap to any buyer of copper scrap. Had
they done so, the buyer of this imported scrap could have claimed a refund and so on. Since the Petitioners have consumed the scrap in the
process of manufacturing Copper Chloride, they have not passed on the incidence of duty to anybody in the manner envisaged in the scheme.
Because the scheme envisages a direct transfer of the burden of duty along with the sale of the same goods which were imported, to the buyer"".
[para 20]
Undoubtedly, the import duty paid on copper scrap may become part of the cost of manufacture of Copper Oxychloride. But when Copper
Oxychloride is sold in the market, it is difficult to ascertain how much of the original import duty on copper scrap is passed on to the buyer of
Copper Oxychloride and in what proportion. Nor can there be in such a case the kind of documentation required under the scheme. So that the
buyer of Copper Oxychloride cannot claim a refund of any part of the duty on Copper scrap. Where there is no sale of the goods which were
imported and no direct transfer of the burden of duty to the buyer of the imported goods, the case falls under clause (a) or (b) of the proviso to
Section 27(2)"". [para 21]
In other words clause (a) also covers all cases where the importer has not sold the imported goods in the same form in which they were imported,
but has used or consumed the goods himself. This would include his using up or consuming the imported goods in the manufacture of a different
commercial commodity. Clause (b) of the proviso brings out this aspect clearly in the case of an individual"". [para 22]
This doctrine of unjust enrichment, which is the genesis of the amendment, has no application in cases where the imported goods are either
consumed by the importer or are used by him in the manufacture of other products. In the case of imported product Customs duty paid on it
becomes a part of the cost of manufacture of the new item or items in which the imported component is an ingredient. In such cases the doctrine of
unjust enrichment is not invoked......."" [para 24]
In the present case the additional duty of customs is levied on raw material which is being imported. It is not an additional duty on any finished
product which is going to be sold to the consumer and to whom the incidence of the additional duty of customs can be passed on directly. Since
the additional duty of customs has not been directly passed on by the petitioners to any third party by selling the imported goods, they are entitled
to claim refund of this amount under proviso (a) to Section 27(2) of the amended Section 27."" [para 25]
It was also submitted before us that in any case since this is a claim for recovery of monies paid under a mistake of law in a petition under Article
226 of the Constitution, the provisions of the Central Excises and Customs Laws (Amendment) Act, 1991 cannot apply in any event. In view if our
earlier findings, it is not necessary for us to examine this aspect of the submission which is made before us"". [para 26]
Learned Senior Counsel refers to the decision of the Supreme Court in Miles India Limited v. Assistant Collector of Customs reported in 1987
(30) E.L.T. 641, wherein it was observed that it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the
claim for refund as they were bound by the period of limitation provided therefore u/s 27(1) of the Customs Act, 1962. The Supreme Court, while
granting leave to withdraw the appeal filed by the Appellant therein, made it clear that the order of the Customs, Excise and Gold (Control)
Appellate Tribunal suffers from no infirmity and really the payment of duty was under a mistake of law, the appellant may seek recourse to such
alternative remedy as it may be advised.
Learned Senior Counsel also refers to the decision of the Supreme Court in Salonah Tea Company Ltd. v. The Superintendent of Taxes,
Nowgong and Others reported in : 1988(33)ELT249(SC) wherein the only question that falls for consideration was whether in an application
under Art. 226 of the Constitution, the Court should have directed refund. The Supreme Court observed as follows :-
We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an
application under Art. 226 of the Constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the
Petitioner which indicate either the abandonment of his claims of which is of such nature for which there is no probable explanation of which will
cause any injury either to respondent or any third party. It is true that in some cases the period of three years is normally taken as a period beyond
which the Court should not grant relief but that is not an inflexible rule. It depends upon the facts of each case.
In this case, it is manifest from the facts narrated above that the petitioner could not file an application for refund within the period of six months
as specified under the proviso to Sec. 27(1) of the Customs Act. As per the judgment of the Tribunal, referred to hereinabove, the respondents
erroneously and without jurisdiction collected additional tax from the Petitioner. It would be said that the respondents had collected additional tax
without the authority of law and as such whether the Petitioner is entitled to refund. Such a right of entitlement accrues only after the judgment of
the Tribunal, referred to hereinabove, and in the course of the proceedings the statutory period of limitation prescribed under Sec. 27(1) of the Act
had already expired and since the statutory authority is bound by the statutory prescription, cannot act beyond the scope of the statutory
provisions, the petitioner has rightly approached this Court under Art. 226 of the Constitution and the ratio of the decision in Salonah Tea
Company''s case (supra) may totally be applicable to the instant case. It is not the case that the petitioner is not entitled to refund and that the claim
of the Petitioner for refund is not bona fide. The Supreme Court has also clearly held in Miles India Limited case (supra) that it is open to the party
that if really the payment of duty was under a mistake of law or the duty is collected without the authority of law, the party is entitled to such
alternative remedy as it may be advised. In these circumstances, the Petitioner cannot be denied of his right to claim refund by instituting the writ
petition. If the writ petitions had been disposed of within the reasonable time from the date of the institution, there is scope for the writ petitioner to
succeed in his claim. During the pendency of the writ petitions, the Amendment Act (Central Act 40 of 1991) came into force and that the
substituted provision of Sec. 27 provides for procedure for claiming refund. The question is whether such a substituted procedure can be made
applicable at this point of time with reference to the claim made by the petitioner, especially when the petitioner made a claim by instituting the writ
proceedings after the statutory period of six months had already expired. The same statutory period of six months is provided for making a claim
for refund under the amended provision of Sec. 27. Amended provision of Sec. 27 provides certain procedure for consideration of the claim for
refund.
In the supplemental affidavit filed by the Petitioner, the Petitioner had categorically stated in detail with reference to the manufacture of synthetic
gems by the use of silica crucibles and the Petitioner made it clear that the Petitioner does not sell silica crucibles and does not trade in these silica
crucibles. They are meant solely for use in the Petitioner''s factory for manufacture of synthetic gems and these crucibles are used as refractory
goods which could withstand very high industrial temperatures, which is necessary for the manufacture of synthetic gems. While so, it is manifest
that the Petitioner had not passed on the incidence of taxation on the customers or buyers. That being the actual position, the ratio of the decision
of the Bombay High Court in Solar Pesticides Pvt. Ltd. case (supra) is directly applicable to the present case. The Bombay High Court had in
extenso dealt with the effect of the amending provisions. Sec. 27(2)(a) and (b) of the Act is very clear to the effect that the Petitioner is entitled to
refund if such amount is relatable to the duty paid by the importer (a) if he had not passed on the incidence of such duty to any other person and
(b) the duty on imports made by an individual for his personal use. In the instant case, the Petitioner had not passed on the incidence of duty to any
other person. As explained supra, since the Petitioner has not directly passed on the goods as imported to the Customers or buyers, the question
of passing on the incidence of duty does not arise.
It is manifest from the aforesaid provisions that if the importer had not passed on the incidence of duty to any other person and the duty on
imports made by an individual for his own personal use, importer is entitled to refund. The said provision contemplates a situation that if an
importer of the goods, after clearing the goods on payment of duty, sells the same to third parties and that by virtue of such sale the importer
passes on the incidence of such duty to any other person, then the importer is not entitled to refund. When the importer made use of the goods for
his own personal use, the question of passing on the incidence of such duty does not arise. Hence the importer in such a situation is entitled to
refund of duty. It appears that if the importer has made use of the imported goods for the manufacture of end-products, the imported goods get
mixed with, in the process of manufacturing of end-product. It cannot be said that the importer has passed on the incidence of duty to third person,
when the end-product is sold. Sec. 27(2)(a) does not contemplate such a situation. In the instant case, the Petitioner has made use of the silica
crucibles in the process of manufacture of synthetic gems and the petitioner has not passed on the duty paid on the silica crucibles to third parties.
In the judgment of the Bombay High Court in Solar Pesticides case (supra), the Court observed that the import duty paid on copper scrap may
become a part of the cost of manufacture of copper oxychloride, but when the copper oxychloride is sold in the market, it is difficult to ascertain
how much of the original import duty on copper scrap is passed on to the buyer of oxychloride and in what proportion; nor can thereby in such a
case the kind of documentation required under the scheme and consequently the buyer of copper oxychloride cannot claim a refund of any part of
the duty on copper scrap. In other words, where there is no sale of the goods which are imported and in the absence of any transfer of incidence
of taxation directly by the sale of the imported goods as such to the buyer, the importer is entitled to claim benefit under Sec. 27(2)(a) and (b) of
the Act.
Yet another contention is whether sub-section (3) of Sec. 27 has to be read in isolation or in harmonious manner considering the sub-sections
(1) and (2) of Sec. 27 of the Act. Sub-sections (1) and (2) of Sec. 27 of the Act provides for refund of duty to the persons who are eligible and
are entitled for refund and also provides the period within which the application for refund should be made and the procedure to be followed by
the authority concerned viz., the Assistant Collector to consider the claim of the refund. In so far as sub-section (3) of Sec. 27 of the Amendment
Act is concerned, it may be said that is an overriding provision viz., that in respect of the judgment, decree, order or in any other provision of the
Act or the regulations made thereunder or any other law for the time being in force, nor refund shall be made except as provided in sub-section
(2).
Considering the scope of amended Sec. 27 of the Act as a whole, the power to order refund is vested with the Assistant Collector of
Customs, provided that the application for refund is filed in time i.e. within the period of limitation prescribed under Sec. 27(1)(b) of the Act, in
such a form accompanied by such documentary or other evidence including the documents referred to in Sec. 28C and thereafter if the Assistant
Collector is satisfied on consideration of those materials that the whole or any part of the duty paid by the applicant is refundable, he may make an
order and if the applicant satisfies the requirements of sub-sections (a) and (b) or sub-section (1) of Section 27 of the Act, the applicant is entitled
to refund. Considering the scope of the aforesaid provision of Sec. 27(1)(b), the said provision does not confer any power on the Assistant
Collector to enlarge the period prescribed thereunder to entertain any application for refund, if such a claim is made beyond six months time from
the date of payment of duty. In cases where there is bona fide and valid claim for refund but the application could not be made within six months
for the reasons such as delay in adjudication by the Appellate Tribunal or in Court, then the Assistant Collector cannot entertain any application for
refund. The provisions of sub-sections (1) and (2) of Sec. 27 of the amended Act do not empower the Assistant Collector to entertain an
application to order refund if the application is not filed within the statutory period even if such application could not be made in time as a result of
the order or decree either by the Appellate Tribunal or Court. If that be the position, the overriding provision contained in sub-section (3) that in
spite of the judgment, decree of direction of the Appellate Tribunal or any Court, no refund shall be made except as provided in sub-section (2)
will be otiose. There is no conferment of power on the Assistant Collector to entertain such a claim made beyond the period of six months except
in case the duty is paid under protest. The Assistant Collector, being the statutory authority, cannot act beyond the scope of the provision of the
Act and cannot enlarge the period of limitation prescribed under the Act. In case where the importer paid the duty at the time when he clears of the
goods and challenges the classification and obtains an order in his favour after a period of six months either from the Tribunal or from the Court is it
open to the importer to file an application for refund beyond the period of six months. Since the provision therein do not contemplate such a
situation, there is no possibility to construe that provision in such manner even by way of harmonious construction. If sub-section (3) is to be
construed in isolation, then again it may be considered whether is it open to the Assistant Collector to entertain any claim for refund made by the
importer beyond the period prescribed in Sec. 27(1)(b) of the Act. In case where the claimant is lawfully entitled to refund, institute appeals or
other proceedings and obtains an order or decree, but beyond the prescribed time cannot apply before the Assistant Collector for refund within
the specified period, the claimant will be deprived of the benefit albeit the order or decree obtained by him for refund. In those circumstances, the
claimant has no other way except to approach this Court instead of approaching any of the statutory authorities prescribed under the Act.
Having due regard to the aforesaid circumstances, it may be considered that the amended provision of Sec. 27 of the Act would apply only to
the claims for refund before the Assistant Collector of Customs made within the period limitation. If any claim is made, as contemplated under Sec.
27, the procedure prescribed under Sections 2 and 3 [sub-sections 2 and 3] have necessarily to be followed.
It may also be considered that under Sec. 27(1)(b) of the Act, in order to claim refund before the authority as per the amended provision of
Sec. 27 of the Act, application for refund should be made in such a form as may be specified in this behalf and shall be accompanied by such
documentary or other evidence, including the documents referred to in Sec. 28C as the applicant may furnish to establish that the amount of duty in
relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any
other person. Sec. 28C of the Act provides that notwithstanding anything contained in the amended Act or any other law for the time being in
force, every person who is liable to pay duty on any goods shall, at the time of clearance of the goods, prominently indicate in all the documents,
relating to assessment, sales invoice and other like documents, the amount of such duty which will form part of the price at which such goods are to
be sold. Sec. 28C of the Act contemplates that the importer, at the time of clearance of the goods, should indicate in all the documents, relating to
assessment, sales invoice and other like documents, the amount of such duty which would form part of the price at which such goods were to be
sold. In the instant case, the Petitioner had imported goods more than ten years ago and it was after adjudication by the Tribunal, the Petitioner had
made claim and also instituted the instant proceeding in the year 1984. The amended Act came into force in the year 1991. The ingredients or
requirements under Sec. 28C of the Act which came into force only in the year 1991 could be expected to be fulfilled by an importer, who
imported goods in the year 1991 and made a claim in respect thereto in order to establish or substantiate his claim for refund at this juncture. The
importer like the Petitioner cannot satisfy such requirements for the simple reason that such a requirement was not necessary at the time when he
cleared the goods for the purpose of establishing his claim. Such being the position, whether the Assistant Collector, who is the statutory authority
empowered under the amended Sec. 27 of deal with the application for refund, is entitled to dispensation of such production of the document or is
he entitled to ignore those requirements so far as the persons, who imported goods even prior to the commencement of the Amending Act. Hence,
it may be considered that the provision like Section 28C cannot be made applicable with reference to the imports that were made before the
commencement of the Act. Such requirement could be made applicable only to the importers, who are importing goods after the commencement
of the Act for the reason that the requirements are necessitated only by the virtue of the amended Act and that cannot be applicable
retrospectively. If any such requirements are imposed on the importer, who had already imported goods, such imposition of conditions under the
statutory provisions are to be construed as discriminatory, arbitrary and unreasonable. It is discriminatory in the sense that those importers who
had the benefit of refund before the amendment came into force are to be treated differently from the importers who made claim for refund and
obtained an order or decree for refund but not executed and whose claims are still pending adjudication. It is arbitrary in the sense that the
importers, who had already imported and made claim for refund, are required to furnish documents which the importer was not aware of at the
time of import and it is unreasonable in the sense that there is no justification in requiring the petitioner who had imported goods about ten years
ago, to produce document in the absence of any such requirement when the goods were cleared about a decade ago. In other words, it can be
said that it may be discriminatory between the persons who had already received the refund and others who have not received the refund by
reason of the pendency of the proceedings. In view of the foregoing reasons, the plea on the part of the learned Central Government Standing
Counsel that the matter should be referred for adjudication once again by the statutory authority viz., the Assistant Collector concerned, cannot be
sustained for more than one reason that the Assistant Collector is not empowered to consider the application filed before him for refund beyond
the period of six months and that the Assistant Collector is not empowered to dispense with any evidence, contemplated under the proviso to sec.
(1) of Sec. 27 of the Act to order refund for the reason that the importers who had imported goods a decade ago could not have contemplated
with a situation that what would be the requirement that he may have to comply for the purpose of establishing his claim after a decade ago, as is
required now under the new provision of Sec. 28C of the amended provision of the Act. In these circumstances, this Court has to consider that the
jurisdiction of the High Court under Art. 226 of the Constitution cannot be taken away by any of the statutory prescriptions and in the instant case
the ratio of Salonah Tea Company Ltd. case (supra) and Miles India case (supra) will directly apply so as to enable this Court to consider the
claim of the Petitioner, by the exercise of jurisdiction of this Court under Art. 226 of the Constitution. Apart from that, learned senior counsel for
the petitioner represents that the process of manufacture of synthetic gems has been narrated in the supplemental affidavit in order to establish that
the petitioner had not sold the imported goods to third parties and thereby passed on the incidence of taxation to third parties. The factum of such
a statement has not been denied by the respondents and so this Court takes that the statement in the supplemental affidavit may be correct and the
petitioner had not passed on the incidence of tax on the imported goods to third parties. Further, the petitioner is entitled to claim for refund by
reason of the judgment of the Tribunal and consequently, it may be considered that any additional duty that was collected in respect of the goods
imported by the petitioner was without authority of law and without jurisdiction and consequently applying the ratio of the Supreme Court in
Salonah Tea Company Ltd. case (supra) the petitioner is entitled for refund and accordingly this Court directs the respondents to refund the
amounts as prayed for in the writ petitions.
In the result, the writ petitions are allowed. However, there will be no order as to costs.