Tata Engineering and Locomotive Company Ltd. vs Union of India

Pendse, J.—The petitioner No. 1 is a company registered under the Companies Act and carries on business as manufacturer of commercial vehicles. The company imported spares by Air and in respect of imported consignment, Bill of Entry for home consumption was filed on July 14, 1982. The consignment was cleared on payment of customs duty of Rs. 55,317.32. The company subsequently realised that the value mentioned in the Bill of Entry has been incorrectly declared in Deutsche Marks as against French Francs with the result that the company had paid excess import duty to the extent of Rs. 36,404.66 ps.

The company filed an application dated November 23, 1983 for refund of customs duty before the Assistant Collector of Customs, Air Cargo Complex, Sahar. The application was rejected by order dated June 13, 1984 on the ground that refund was sought beyond the period of six months from the date of payment and therefore was barred by the provisions of Section 27 of the Customs Act, 1962. The appeal preferred before the Collector of Customs was rejected and that has given rise to the filing of the present petition.

Shri C. M. Chaudhary, Assistant Collector of Customs, has filed an affidavit sworn of February 7, 1994 and it is not disputed that the declaration made while filing the Bills of Entry was factually incorrect. Mr. Shroff, learned counsel appearing on behalf of the petitioners, submitted that excess duty was paid due to the clerical mistake and once the Department has no dispute that excess amount was paid then there should be no difficulty in directing refund of the excess amount. Mr. Shroff submitted that the bar u/s 27 of the Customs Act is not applicable while this Court exercises jurisdiction under Article 226 of the Constitution. Mr. Vyas, learned counsel appearing on behalf of the Department, urged that the question as to whether the petitioners are entitled to refund would depend upon the issue as to whether the incidence of extra duty burden was transferred by the company to third party. Mr. Vyas submitted that investigation of this aspect is necessary to direct refund in favour of the company. Though normally, the contention of the learned counsel for the Department would have been accepted and the matter sent down for investigation, we are not inclined to adopt that course in the present case for more than one reason. In the first instance, an affidavit has been filed on behalf of the company stating that the imported consignment was used in the company itself and the burden of excess duty paid was not transferred to third party. Secondly, the amount of the refund sought is so negligible that no worthwhile purpose would be served by remitting the matter back to the Asstt. Collector after a passage of more than 12 years from the date of payment of excess duty. For these reasons, in our judgment, it would be appropriate to direct the respondents to return the excess duty in favour of the company.

Accordingly, petition succeeds and rule is made absolute in terms of prayer (a). The respondents are directed to refund the amount of Rs. 36,404.66 to the company within a period of eight weeks from today. In the circumstances, there will be no order as to costs.