1. By this petition filed under Article 226 of the Constitution of India, the petitioners are challenging the legality of an order dated January 9, 1976 passed by the Joint Secretary to the Government of India dismissing two revisional applications on the ground that the applications were filed beyond period of limitation.
2. Only few facts are required to be stated to appreciate the grievance of the petitioners. The petitioners are a Company registered under the Companies Act and are one of the leading manufacturers of automotive tyres and tubes in India. The petitioners import vinyl pyridine Latex (V.P. Latex) as it is one of the essential ingredients in the course of manufacture of automotive tyres. The petitioners imported from time to time V.P. Latex and the Customs authorities levied duty under Item 82(3) of the Import Customs Tariff. The petitioners claimed that the item imported was liable to be assessed under Item 39 of the Tariff and, therefore, paid the duty as demanded by the Customs authorities under protest. The petitioners filed several refund applications claiming that the Customs authorities have recovered excess duty by classifying the item under Tariff Item No. 82(3) instead of under Item 39. It is no longer in dispute in view of the decision of the Supreme Court in the case of Dunlop India Ltd. v. Union of India and others reported in A.I.R. 1977 Sup Court 597 that the item V.P. Latex is liable to assessment under Tariff Item No. 39. In view of this decision of the Supreme Court, it is not in dispute that the petitioners are entitled to get the refund of the excess amount paid at the time of the clearance.
3. Several applications filed by the petitioners for refund of duty came to be rejected by the Assistant Collector and that order of rejection was confirmed in appeal. The petitioners carried nine revision applications before the Government of India and out of them seven were allowed by the revisional authority in view of the decision of the Supreme Court. The dispute in this petition is in respect of two revision applications which ended in dismissal on the ground that the revision applications were filed beyond period of limitation.
4. The petitioners have imported two consignments viz. 246 drums and 50 drums of V.P. Latex and the Bills of Entries were filed on August 28, 1971 and April 6, 1971 respectively. The refund applications in respect of these two consignments were filed on January 12, 1972 and October 12, 1971 respectively. The Assistant Collector passed the order rejecting the applications on January 17, 1972 and November 8, 1971. The appeals preferred by the petitioners were dismissed by the appellate authority on December 2, 1972 by separate orders. The petitioners preferred two revision application before the Government of India on June 19, 1973 and both revision applications were lodged 15 days beyond the statutory period of limitation. The revision applications came to be dismissed by a consolidated order on the ground that they were filed beyond period of limitation. The order rejecting the revision applications on the ground of limitation is under challenge, in this petition.
5. Shri Taraporewala, the learned counsel appearing in support of the petition, submitted that the revisional authority was clearly in error in rejecting the applications on the ground of limitation when other seven revision applications were allowed as the petitioners were entitled to succeed on merits. Shri Taraporewala submits that the revisional authority has jurisdiction to condone the delay, which was almost negligible, and by refusing to exercise that jurisdiction, the revisional authority has caused serious prejudice to the interest of the petitioners. I find considerable merit in the submission of the learned counsel. The petitioners have mentioned in the petition that the delay was caused in lodging the revision applications as the petitioners were under misconception that they would be entitled to file revisional applications subsequent to the date of decision of the Supreme Court in the matter which was pending before the Supreme Court at the relevant time filed by the Dunlop Company. It may be that the impression carried by the petitioners was not correct, but in my judgment, the revisional authority was not justified in not condoning the delay and granting the relief to the petitioners on merits on the facts and circumstances of the case.
6. Shri Chinai, the learned counsel appearing on behalf of the Department, urged that the petitioners should not be given relief for more than one reason. In the first instance, the learned counsel urged that though the revisional applications were disposed of on January 16, 1976, the petitioners have approached this Court by filing this petition only on August 9, 1978. Shri Chinai urges that there is no satisfactory explanation for the delay in approaching this Court and the petition should fail only on that count. I am not inclined to accept the submission because it would not be appropriate to defeat the just claim of the petitioners on the technical ground of delay. Shri Chinai then submits that though admittedly the revisional applications were filed beyond period of limitation, the petitioners have not given any reason for condonation of delay in their revisional petitions. It is true that revisional applications do not set out any grounds for condonation of delay but Shri Taraporewala counters by submitting that the revisional authorities never called upon the petitioners to explain the delay and the impugned order was passed without giving any opportunity to explain the delay. In my judgment, the delay is hardly of 15 days and there is no sound reason why such short delay should not be condoned.
7. Shri Chinai finally submits that even assuming that the delay could be condoned, the proceedings should be remitted back to the revisional authorities for passing appropriate order. I do not propose to adopt that course, because on merits, the Department has no answer to the claim made by the petitioners. In fact, the revisional authority itself had allowed other seven revisional applications which were admittedly filed in time. In these circumstances, no valid purpose would be served by remitting the matters back to the revisional authorities for passing appropriate orders. The petitioners are entitled to relief in this petition itself.
8. Accordingly, the petition succeeds and the rule is made absolute and the order dated January 9, 1976 passed by the revisional authority dismissing the two revisional applications is set aside and the respondents are directed to refund the Customs duty to the petitioners after calculating the same within a period of three months from today. In the circumstances of the case, there will be no order as to costs.