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Premraj and Ganpatraj and Company (P.) Limited (Now Known as Madras Electrial Conductors (P.) Limited) Vs. the Assistant Collector of Customs and ors. - Court Judgment

LegalCrystal Citation
SubjectCustom
CourtChennai High Court
Decided On
Reported in(1977)2MLJ302
AppellantPremraj and Ganpatraj and Company (P.) Limited (Now Known as Madras Electrial Conductors (P.) Limite
RespondentThe Assistant Collector of Customs and ors.
Cases ReferredPremraj Ganpatraj and Co. (P.) Limited v. The Assistant Collector of Customs
Excerpt:
- .....(hereinafter referred to as the act) were worked out by the assessing officer on the basis that customs duty was due at 15 per cent. of the value of the goods and another type of duty known as courtervailing duty was due at the rate of rs. 740 pe metric ton under section 2(a) of the tariff act. really, however, countervailing duty had been reduced in the case of the goods in question from rs. 740 per metric ton to rs. 620 per metric ton by notification no. 170 of 1967 dated the 26th of may, 1967 issued by the government of india which stated thus:in exercise of the powers conferred by sub-rule (1) of the rule 8 of the central excise rules, 1944, read with sub-clause (4) of clause 41 of the finance (no. 2) bill, 1967, which clause has by virtue of a declaration mace under the.....
Judgment:
ORDER

A.D. Koshal, J.

1. The petitioner before me is Messrs. Premraj and Ganpatraj and Company (Private) Limited (now known as Messrs. Madras Electrical Conductors (Private) Limited and hereinafter referred to as the company) which has been carrying on business at Madras and in the course thereof imported 99,707 tons of electrolytic aluminium wire bars under bill of entry No. D-1796 dated the 17th of June, 1967. The duties payable by the company on the goods under the Customs Act, 1962 (hereinafter referred to as the Act) were worked out by the assessing officer on the basis that customs duty was due at 15 per cent. of the value of the goods and another type of duty known as courtervailing duty was due at the rate of Rs. 740 pe metric ton under Section 2(a) of the Tariff Act. Really, however, countervailing duty had been reduced in the case of the goods in question from Rs. 740 per metric ton to Rs. 620 per metric ton by notification No. 170 of 1967 dated the 26th of May, 1967 issued by the Government of India which stated thus:

In exercise of the powers conferred by Sub-rule (1) of the Rule 8 of the Central Excise Rules, 1944, read with Sub-clause (4) of Clause 41 of the Finance (No. 2) Bill, 1967, which clause has by virtue of a declaration mace under the Provisional Collection of Taxes Act (XVI of 1931) the force of law, the Central Government hereby exempt with effect from the 26th May, 1967, aluminium in any crude form falling under, sub-item (a) of Item No. 27 of the First Schedule to the Central Excises and Salt Act (I of 1944) and aluminium manufactures falling under sub-item (b) of the said item No. 27, from so much of the special duty of excise as is equivalent to the special duty of excise leviable at Rs. 120.00 per metric tonne.

It appears that neither the company nor the assessing officer were aware of the contents of this notification when the duty was worked out as stated above and paid accordingly.

2. On the 28th of November, 1968; the company applied to the Assistant Collector of Customs, Madras (respondent No. 1) for refund of the duty paid by it in excess, i.e., at the rate of Rs. 120 per metric tonne, the total amount claimed being Rs. 11,952.84. That application was dismissed by respondent No. 1 on the ground that it (sic) time-barred in view of the provisions of Section 27 of the Act as it had been presented more than six months from the date of payment of the sum claimed as refund. The company-preferred an appeal to the Appellate Collector Customs, Madras, but without success. A revision petition instituted before the Government of India under Section 131 of the Act was also rejected. That is why the company has invoked the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer that the orders of the Assistant Collector of Customs, Madras, the Appellate Collector of Customs, Madras, and the Government of India, who are the three respondents before me, be quashed by a writ of certiorari and that the Government of India be directed to refund to the company the said sum of Rs. 11,952.84.

3. In so far as the orders of the respondents are concerned, no fault can be found therewith, inasmuch as the application for refund made by the company was actually time-barred, having been presented, as already stated, beyond six months of the payment of duty so that the customs authorities were bound to reject it in pursuance of the provisions of Section 27 of the Act. That, however, does not end the matter because the recovery of excess duty was clearly and admittedly in contravention of the notification above extracted and, therefore, without jurisdiction so that the same is liable to be refunded by directions in the nature of mandamus to be issued by this Court. This conclusion finds support from the judgment in Special Civil Applications Nos. 909, 910 and 911 of 1971 decided by a Division Bench of the Gujarat High Court consisting of Mehta and Sheth JJ., on the 17th/18th March, 1972 which was followed by Ramaprasada Rao, J., in Premraj Ganpatraj and Co. (P.) Limited v. The Assistant Collector of Customs, Madras and Ors. W.P. Nos. 3236 to 3251 of 1970, decided on 14th September, 1972.

4. In the result, the petition succeeds in part. While the orders of the three respondents holding the application made by the petitioner to the Assistant Collector of Customs, Madras, for a refund of the excess duty to be time-barred are not interfered with, the respondents are directed by a writ of mandamus to refund to the company the sun Rs. 11,952.84. The parties are, however, left to bear their own costs.


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