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Acharya Brothers Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberSuit No. 122 of 1972
Judge
Reported in1982(10)ELT950(Cal)
ActsIndian Tariff Act, 1934; ;Customs Act, 1962 - Sections 2(15), 12, 17, 18, 26, 26(4), 27, 27(4), 46, 50, 51, 130, 131 and 155; ;Foreign Exchange Act, 1947; ;Foreign Exchange Regulation Act; ;Customs Tariff Act, 1975; Limitation Act - Section 29(20); ;Sea Customs Act; ;Constitution of India - Article 226; ;Short Export Rules, 1963; ;Customs Rules; ;Customs Regulation; ;Code of Civil Procedure (CPC) - Section 9
AppellantAcharya Brothers
RespondentUnion of India (Uoi)
DispositionSuit dismissed
Cases Referred(Union of India v. Bhagwan Industries Ltd.
Excerpt:
- orderpadma khastgir, j.1. this suit has been filed by acharya brothers against union of india. the case of the plaintiff is that at all material times the plaintiff carried on business as exporters of jute goods from india. the plaintiff during february 1967 and may 1967 presented before the custom house calcutta diverse shipping bills for export of jute goods full particulars whereof have been given in paragraph 3 of the plaint. in respect of jute goods intended to be exported under those shipping bills, the plaintiff paid a total sum of rs. 35,227.72 by way of advance payment to be appropriated or adjusted towards customs duty that might be payable, upon the actual exportation of the jute goods as mentioned in the shipping bills. the plaintiff has pleaded in the plaint that the said.....
Judgment:
ORDER

Padma Khastgir, J.

1. This suit has been filed by Acharya Brothers against Union of India. The case of the Plaintiff is that at all material times the plaintiff carried on business as exporters of Jute goods from India. The Plaintiff during February 1967 and May 1967 presented before the Custom House Calcutta diverse shipping bills for export of jute goods full particulars whereof have been given in paragraph 3 of the Plaint. In respect of jute goods intended to be exported under those shipping bills, the plaintiff paid a total sum of Rs. 35,227.72 by way of advance payment to be appropriated or adjusted towards customs duty that might be payable, upon the actual exportation of the jute goods as mentioned in the Shipping bills. The plaintiff has pleaded in the plaint that the said goods were not ultimately shipped by the plaintiff. As a result, notice with regard to non-shipment or short shipment of the said goods was duly filed with the customs authorities of the defendant. According to the plaintiff as no goods were exported from India no duty whatsoever could be levied and/or collected under the Indian Tariff Act, 1934 and/or Customs Act, 1962. As such the plaintiff became entitled to receive from the defendant and the defendant was obliged to refund the said sum of Rs. 35,227.72 to the plaintiff. The plaintiff also presented in the year 1967 at the Customs house, Calcutta diverse other shipping bills full particulars whereof would appear from paragraph 7 of the plaint. In respect of the said goods the plaintiff paid a total sum of Rs. 75,792.46 according to the plaintiff by way of advance payment to be appropriated or adjusted towards customs duty that might be payable upon the actual exportation of the said jute goods. According to the plaintiff, the customs authorities illegally and wrongfully detained the said goods and wrongfully alleged that the said goods were liable to be confiscated for alleged contravention of the provisions of the Foreign Exchange Act, 1947. The Assistant Collector of Customs issued Show Cause Notice on 7th July, 1967 requiring the plaintiff to show cause as to why the said goods should not be confiscated Under the Customs Act and as to why penal actions should not be taken against the plaintiff. By an order dated 7th October, 1967 the Additional Collector of Customs, Calcutta directed confiscation of the goods and imposed penalties on the plaintiff under the Customs Act. Against the said order the plaintiff moved an application on 6th November, 1967 under Article 226 of the Constitution of India before this Hon'ble Court while issuing the Rule Nisi this Hon'ble Court was pleased to make Interim Order restraining the customs authorities from taking any steps in furtherance of the said order dated 7th November, 1967. Thereafter the plaintiff made an application for extension of the said Interim Order dated 6th November, 1967 in the said Article 226 application, and the said application was disposed of on 22nd December, 1967 by consent of the parties. Under the said consent order the customs authorities were given liberty to sell the goods which were lying in their custody and the sale proceeds are to be held by them subject to further order of this Hon'ble Court. It was also directed that the plaintiff would not withdraw a sum of Rs. 3,95,103.42 which was lying deposited with the Customs authorities on account of the plaintiff. Subject to further order of this Hon'ble Court, it was also ordered that the customs authorities would not give effect to said order dated 7th October, 1967 till the disposal of the said Rule. The sum of Rs. 35,222.72 mentioned in paragraph 4 of the plaint forms part of the sum of Rs. 3,95,103.42 but the sum of Rs. 75,792.46 was not included in the said sum of Rs. 3,95,103.42. The customs authorities sold the said goods for a sum of Rs. 1,64,000.42, on 30th January, 1969 the Hon'ble Mr. Justice T.K. Basu was pleased to make the Rule Nisi absolute and quash the said order dated 7th October, 1967 and the customs authorities were directed to forbear from giving any effect to the said purported Order in any manner whatsoever. From the said Order and judgment the customs authorities preferred an application was made by the Customs authority for stay of operation of the said judgment and order dated the 30th January, 1969. By consent of the parties on 16th September, 1969 an order was made staying the operation of the said judgment and order dated 30th January, 1962 and it was further directed that the customs authorities would deposit within fortnight from date a sum of Rs. 5,59,145.42 held by them in the State Bank of India in fixed deposit to fetch the best possible interest and that amount would be held subject to further order of the Hon'ble Court. The said sum of Rs. 5,59,145.42 comprised the said sum of Rs. 3,95,103.42 which had been paid by the plaintiff on account of duty and a sum of Rs. 1,64,042 representing the sale proceeds of the goods sold by the customs authorities pursuant to order of this Hon'ble Court. The appeal filed by the customs authorities was dismissed on 6th March, 1970 and the judgment and order which was passed by the Hon'ble Mr. Justice T.K. Basu on 30th January, 1969 became final and binding on the parties. After the dismissal of the appeal the plaintiff called upon the customs authorities to refund the said sum of Rs. 5,59,145.42 but the Customs authorities only returned to the plaintiff a sum of Rs. 5,24,632.42 and according to the plaintiff wrongfully and arbitrarily refused to pay to the plaintiff the said sum of Rs. 35,227.72 although that sum was included in the said sum of Rs. 5,59,145.42. On the plea that the plaintiff had not applied for refund of the said sum within the period provided under the Customs Act, 1962. According to the plaintiff the Customs authorities are wrongfully withholding the payment of the said sum of Rs. 35,227.72 and the sum of Rs. 75,792.46 without any basis right or authority whatsoever.

2. According to the plaintiff, this money was paid to the Customs authorities by way of advance on account of customs duty which would have become leviable in case the plaintiff had exported the said goods under the relevant shipping bills mentioned above. As the said goods were not exported by the plaintiff the defendant has no right whatsoever to withhold and appropriate or retain the siad total sum of Rs. 1,11,020.80.

3. According to the plaintiff, the consideration, if any for the payment of the said sums has totally failed and the plaintiff had become entitled to refund of the said sum. The plaintiff has pleaded in paragraph 26 of the plaint that the defendant and/or its duly authorised agent have acknowledged its liability to the plaintiff in the affidavits and letters filed and/or written by and on behalf of the defendant. Accordingly to the plaintiff from 27th December, 1967 till 6th March, 1970 when the said appeal was disposed of the plaintiff was restrained by orders of this Hon'ble Court from releasing its dues. As such no suit could be instituted by the plaintiff for recovery of the said dues. In the premises, the plaintiff claims that no part of the plaintiffs claim is barred by the law of limitation. As such this suit has been filed by the plaintiff.

4. The defendant in its written statement has denied that the said sum was paid by way of advance payment to be appropriated or adjusted towards customs duty. According to the defendant, the payment of the duty against the shipping bill is obligatory after shipping bill is classified and assessed to duty after its presentation to the Customs authorities. The defendent has admitted that a sum of Rs. 35,227.72 was paid against the shipping bills as Customs duty. The defendant states that although the plaintiff has filed short shipment notice but did not prefer any claim for refund either separately or by way of suitable endorsement in the short shipment notice within the time stipulated under Section 27 of the Customs Act. The defendant has denied its liability or obligation to refund the said sum of Rs. 35,227.72 as according to the defendant the plaintiff has failed and/or neglected to lodge claim for refund of duty in the manner as laid down by the Customs Act, 1962. The defendant has admitted the payment of Rs. 75,792.46 against the shipping bills. The defendant has stated in the written statement that as loose deals were apprehended, the goods were seized and confiscated for contravention of the Foreign Exchange Regulation Act.

5. The defendants case is that the said sum was paid towards payment of duty against the shipping bills and not by way of advance on account of duty as claimed by the plantiff. According to the defendant the payment represented the amount of duty which was not refundable as the plaintiff did not follow the procedure for refund as provided under the Customs Act. According to the defendant the claim of the plaintiff for refund is untenable in view of the mandatory provisions of Section 27 of the Customs Act read with Short Export Rules, 1963. The defendant has also denied that it has acknowledged its liability by way of affidavit or by letters. As no claim has been preferred within 6 months from the date of payment of the duty and not even from the date of dismissal of the said appeal on 6th March, 1970 the plaintiffs claim is hopelessly barred by the law of limitation. The defendant has also taken the point that this Hon'ble Court has no jurisdiction to try this suit as the Customs Act has provided adequate remedy for obtaining such redress against the erroneous exercise of powers of assessment and for refund of tax collected thereby. According to the defendant, as the plaintiff has not followed the procedure under the Customs Act it cannot now take recourse to a remedy by way of suit and as such the said suit is not maintainable.

6. After hearing the parties and correspondence and other documents the following issues were raised.

1. Was the payments of duty made by way of advance as alleged in paragraphs 4, 8 and 14 of the plaint ?

2. Was there any acknowledgement of liability by the defendant or its authorised agent in respect of (i) the sum of Rs. 35, 227.72 (ii) Rs. 75, 792. 46 ?

3. Was the plaintiff restrained from realising the aforesaid sums of Rs. 35, 227. 72 and Rs. 75,792. 46 during the period from December 22, 1967 till 6th March, 1970 ?

4. Is the suit barred under the provisions of the Customs Act, 1962 ?

5. Is the suit barred by limitation ?

6. To what relief if any is the plaintiff entitled ?

7. The number of correspondence and other documents were by consent of the parties marked as exhibits as formal proof of those documents was dispensed with by consent of the parties. There is no dispute by and between the parties that the plaintiff presented certain goods under various shipping bills to the Customs authorities at Calcutta for export of jute goods and was charged duty in respect thereof. The plaintiff maintained an account with the Customs authorities for the purpose of payment of export duty and after the shipping bills were placed the plaintiff gave instruction to the Customs authorities to adjust the said duty from the account maintained by the plaintiff. It is the common case that in fact no' cash payment has been made by the plaintiff but only there has been an adjustment of account on instructions given by the plaintiff. Before the goods could be exported outside India it appeared to the Customs authorities that although the ultimate destination of the goods was declared to be Yugoslavia, the goods were purported to be sent to Italy which was not permissible under the Rules. Moreover, the Customs authorities suspecting this transaction to be a Switch transaction, issued show cause notice on the plaintiff and confiscated the said goods and imposed a penalty for violation of the Foreign Exchange Regulation Act. The main dispute by and between the parties is that first of all whether the amount realised by the Customs authorities was a duty levied as envisaged by the Customs Act, 1962 and if so then whether such duty is refundable to the plaintiff on account of non-exportation of the said goods outside India. The main defence of the defendant is that as the said sum was paid by the plaintiff by way of duty and not paid under protests that could only be refundable to the plaintiff provided the plaintiff followed the statutory procedure by applying for refund to the Customs Authorities within 6 months from the date of the payment. As the plaintiff only filed notices of short shipment but did not file any application nor did the plaintiff make any endorsement for refund on the said short shipment notice within 6 months as provided under Section 27 of the Customs Act the plaintiff's claim is hopelessly barred by the law of limitation and as such it is not realisable by the plaintiff from the defendant. The second point taken by the defendant is that under Section 155 of the Customs Act, 1962 no suit prosecution or other legal proceedings shall lie against the Central Government or any officers of the Government or a local authority for anything which is done or intended to be done in good faith, in pursuance of this Act or the rules or regulation framed thereunder. As such according to the defendants counsel Mr. A.K. Banerjee this suit is not maintainable as what the custom authorities have purported to do or intended to be done was in pursuance of the Customs Act and in good faith. As such the present suit of the plaintiff against the Union of India does not lie and this Court has no jurisdiction to pass any decree in favour of the plaintiff specially in view of the fact that in the plaint itself the plaintiff has not alleged any mala fides or bad faith against the Customs authorities nor has the plaintiff challenged any acts of the Customs authorities on the ground that they were ultra vires the Customs Act or that the act complained of was not done or not intended to be done pursuant to the Customs Act. The plaintiff examined Ballabhdas Acharya,.one of the partners of the plaintiff firm.

8. The sum and substance of the evidence of Ballabhdas Acharya is that the plaintiff firm is an exporter of jute goods and they maintained on account with the Customs authorities for payment of duties for export of goods. The said account was opened before 1965 or 1966. The plaintiff presented various shipping bills with the Custom authorities and a sum of Rs. 35,227.72 was advanced from the said account against the shipping bills submitted by the plaintiff. In June 1967 the plaintiff also deposited a sum of Rs. 75,792.46 from the same deposited account. The goods in respect of the shipping bills were not exported and all the goods were confiscated by the Customs authorities. Ultimately pursuant to an order of court the said goods were sold by the Customs authorities. Thereafter the plaintiff moved the High Court and obtained a Rule Nisi against the order of the Customs authorities confiscating the goods and penalising the plaintiff to the tune of Rs. 16 lakhs. At the particular time a sum of Rs. 3,50,000/-was lying deposited with the Customs authorities, for and on behalf of the plaintiff and that sum was never refunded by the Customs authorities. In the said 226 application the Rule obtained was made absolute. From that the Customs authorities preferred as appeal which was ultimately dismissed. He has further deposed to the effect that in the affidavits affirmed on behalf of the defendant by Arbinda Mohas Sinha were the defendant was stated that money was not payable to the plaintiff 'at that stage' until and unless the rights of the parties were finally decided. After the disposal of the said appeal a sum of Rs. 5,00,000/- has been returned by the defendant to the plaintiff but the defendant failed and neglected to pay the said sum of Rs. 35,227.72 and Rs. 75,792.46. He has further deposed regarding filing of the short shipment notices. He has admitted that there is no endorsement either on the shipping bill or on the short shipment certificates claiming refund of the sums mentioned therein. Although he said in answer to question 210 that there is a claim for refund in the short shipment notice but he could not point out where such claim had been made by him. In answer to question 243 he has stated that he does not remember whether any application has been made to his knowledge to the Customs authorities for refund of the sum paid. According to this witness filing of the short shipment notice amounts in fact a notice for refund of the duty although he states that there is no figure mentioned regarding the duty that is to be refunded on filing of the short shipment notice. In respect of each and every short shipment notice he has admitted that there is no endorsement to the effect whereby the plaintiff can show that it claimed refund from the Customs authorities. He has deposed that an application was made on behalf of the plaintiff before this Hon'ble Court for refund of Rs. 1,10,000/-but ultimately no order was passed on the application because it was not pressed. It was further suggested to him that after the appeal was disposed of the appeal court gave opportunity to the plaintiff to make an application for refund of the said sum but the plaintiff did not take out any application to that effect. In answer to question 343 he has admitted that there was no injunction or order between June 1967 and December 22, 1967 restraining the plaintiff from withdrawing the said sum from the Customs authorities. He has further admitted that there was no injunction order between June and December 1967 restraining the plaintiff from withdrawing a sum of Rs. 75,792.46. According to Mr. Acharya there was a transfer entry and there has not been any actual payment. Jn answer to question 371 he has stated that the amounts were transferred from the deposit account to duty account. That was done in respect of all the shipping bills.

9. The defendant examined one Santosh Kumar Bhattacharjee, Superintendent of the Customs. In the year 1966-67 he was an Appraiser. He knew-the plaintiff firm as an exporter. According to him duty is payable immediately, after the assessment is done and if the goods are not shipped, the duty amount is refunded and the exporter must file a short shipment notice to that effect and put forward their claim for refund before refund can be made. In case if any excess quantity is shipped, separate charge is made. He has deposed regarding procedure followed by the Customs authorities while imposing duty on goods, specially jute goods. The particular procedure followed by the authorities is that in case of import of goods are assessed when the goods arrive and in case of export of goods, duty is leviable and assessed as soon as the goods are brought in the Customs shed before the customs authorities and actually before the goods are despatched. According to him as soon as a number is put on the shipping bill that indicates that the assessed amount has been paid by the party and that number indicates that the shipping bill has been processed and assessment has been certified by the officer.

According to him, at the time of payment of the duty no protest was made by the assessee as nothing appears on the bill. Had there been any protest made by the assessee there would have been such an endorsement on the shipping bill. He has proved the signature of the officers who have processed the shipping bills. According to him, this practice of charging duty before the goods actually shipped is under the export manual. It is his positive evidence that in case of exoprt, all goods are actually assessed and charged before the goods are exported. Although he was suggested that any monej which was paid by the assessee before the goods are actually exported the same is not paid by way of advance payment which is to be adjusted ultimately with the Customs duty, but that suggestion was not accepted by the witness (question 299). He also did not agree with the suggestion that Customs duty did not become payable in law until and unless goods are actually exported. According to this witness duty is leviable as soon as the shipping bills have been assessed to duty. The parties did not call any other witness on their behalf.

10. The main point that has been taken by Mr. Mallick in this case is that which the Customs authorities assessed duty on the shipping bills filed by the plaintiff they could only charge such customs duty under Section 12 of the Customs Act, 1962.

According to Mr. Mallick, duties of Customs shall be levied on goods which are actually exported from India, until and unless goods are exported, no duty can be levied as according to him there is no provision in the Act itself for charging any such duty until and unless goods are actually exported outside India. According to him, whatever money has been paid by the plaintiff is by way of advance payment towards Customs duty which would have been levied provided goods were exported from India. As such, according to him whatever money has been paid by the plaintiff is not paid by way of duty. So the question of making an application within six months for refund of the said sum from the Customs authorities does not arise as envisaged under Section 27 of the said Act. His argument is that the plaintiff is making the claim for refund not under the Customs Act but under the common law, as according to him the Customs authorities have not acted in accordance with the provisions of the Act and/or the Customs authorities have not acted in good faith. So the bar of the Civil Suit as provided under Section 155 of the Customs Act would not apply in this case. He has referred to various decisions both of this court, of the High Court at Bombay and also various decisions given by the Supreme Court of India. Mr. Banerjee on the contrary has argued that Section 2(15) of the Customs Act provides that duty means a duty of Customs leviable under this Act. 'Section 2(19) defines export goods as goods which are to be taken out of India To a place outside. He has also submitted that Section 17 of the Customs Act is relevant which provides that where an exporter has entered any export goods the said goods without undue delay be examined and tested by the proper officer and after such examination and testing the duty, if any, leviable on such goods, shall be assessed. There is also provision for provisional assessment of duty under Section 18 of the said Act. According to Mr. Banerjee, not only under the provisions of the Customs Act but also under the practice and procedure followed by the Customs authorities duty is in fact levied and charged before the goods are actually exported outside India. The duties so paid can be refunded to the exporter if the goods are not exported as if they are short shipped provided the assessee makes a claim for refund before the expiry of 6 months from the date of payment of the duty. But that period of limitation has no application where the duty is paid under the protest. In case of any order being made in appeal or revision under the said Act the duty would be refunded in the case of assessee having made any claim to that effect under Section 27(4) it is provided that no claim for refund of any duty shall be entertained except in accordance with the provisions of that Section. Under Section 51 of the Customs Act only, where the proper officer is satisfied that any goods entered for export are not prohibited the goods are assessed and the exporter pays the duty the proper officer may make the order permitting clearance and release of all the goods for exportation. From this Section it would be apparent that no goods can be allowed for exportation until and unless duty has been actually paid. So Mr. Mallick's point that no duty can be levied until and unless the goods are exported outside India is untenable, as otherwise the entire procedure would be unpracticable in the sense once the goods exported by the exporter the Customs authorities woulc* loose control or session over the goods and as such in case if the assessee turns to be a person of no means it would not be possible for the Customs authorities to realise the duties from the said person and that exactly is the reason why such practice is being followed not only in terms of the Customs manual but also in accordance with the object of the Customs Act as expressed in its various provisions and Sections.

11. Mr. Banerjee has also taken the point that this suit is not maintainable as there is a specific bar under Section 155 of the Customs Act. Where any act has been done by an officer of the Government or local authority which is not only done but also intended to be done in good faith in pursuance of this Act or the rules or regulations framed thereunder no suit or prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority. In this case while the Customs authorities assessed and imposed the duty which was accepted by the plaintiff without any protest and in fact the plaintiff has given definite instruction to the Customs authorities to have the same adjusted from its existing deposit account it cannot be held by any stretch of imagination that such act the Customs authorities was either mala fide or not intended to be done in pursuance of the Customs Act. The plaintiff's grievaace of the non-refund of the sum as claimed in the plaint is met by the defendant on the ground that the Customs Act of 1962 is a complete code. It provides for imposition of duty and also provides procedures or remedies for refund of the duty so paid in accordance with the terms of the said Act. It also further provides that where a party is dissatisfied with the order it can appeal and also apply by way of reference and ultimately can also move the Central Government to that effect. As such until an,d unless it is shown by the plaintiff that the action taken by the authorities is ultra vires the Customs Act or any Act or has been done in good faith then only a civil suit lie to consider the claim made and civil courts jurisdication would be attracted. Mr. Banerjee has submitted that the plaintiff has not made out such a case in the plaint either of mala fides or of violation of the provisions of the Customs Act, as such the defendant is not expected to meet the case purpored to be made out by one of the partners of the plaintiff from the witness box and also of the case as has been made out by Mr. Mallick in his argument. The defendant has also taken the point that as the plaintiff has not made an application for refund within six months the claim of the plaintiff is barred by the law of limitation. The defendant has also taken the point that even assuming that the plaintiff's case is not governed by Section 27 of the Customs Act but in view of the fact that the appeal was disposed of on 6.3.70 and although in spite of a direction given by the Appeal Court for making an application for refund of the said sum of Rs. 1,10, 000/- the plaintiff did not choose to make any application to that effect but on the contrary the plaintiff filed the present suit after two long years from the date of the disposal of the appeal, due to that or in any event Mr. Banerjee has submitted that the plaintiff's calim is barred by the law of limitation. These facts become relevant for the purpose of determination of the point of limitation.

12. The relevant provisions of the Customs Act for the purpose of the determination of issues in this suit are:-

Section 12 which provides that '(1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of Customs shall be levied at such rates as may be, specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into or exported from India, (2) provisions of sub-Section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government.

Section 26, which provides for the refund of the export duty in certain cases, from Section 26, it would appear that in a case where duty is refundable, an application for such refund of duty should be made before the expiry of six months. Section 27, provides for claim for refund of duty as '(1) any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs before the expiry of six months from the date of payment of dutv, but such limitation shall not apply in cases where any duty has been paid under protest, where any duty is paid provisionally under Section 18, the period of six months shall be computed from the date of the adjustment of duty after the final assessment thereof under sub-Section (3) where, as a result of any order passed in appeal or revision under this Act the refund of duty becomes due to any person the proper officer may refund the amount to such person without his haying to make any claim in that behalf under sub-Section (4) save as provided in Section 26, no claim for refund of any duty shall be entertained except in accordance with the provisions of Section 27.'

Section 128 makes provisions for appeal and under Section 130 provisions have been made for revision to the board and under Section 131 provisions have been made for revision to the Central Government. Section 155 provides for protection of action taken under the Customs Act. By reading Section 155, it would clear that no suit or prosecution or other legal proceedings can be brought against the Central Government or any other officer of the Government for any thing done or intended to be done in good faith and in pursuance of this Customs Act or the rules and regulations framed thereunder. The Customs Act itself is a complete code and provides for assessment, collection procedures and also remedies unless there is allegations of bad faith or of facts which would show that any action taken were not in accordance with the provisions of this Act no suit will lie in a civil court. In this respect reference may be made to A.I.R. 1940, Privy Council, page 105, 65 Calcutta Weekly Notes page 1206, : AIR1965Cal517 .

Specific provisions regarding the claim for refund of the duty has been made or for money paid in the act itself. The plaintiff must follow the procedures as laid down under the Act. The jurisdiction of the Civil Court is only attracted in cases where there has been abuse of power arbitrary and/or mala fide exercise of such powers. In this respect reference may be made to cases reported in : [1963]50ITR93(SC) , : [1966]61ITR187(SC) and : [1971]1SCR275 .

13. So far as the point of limitation is concerned, under the provisions of the Customs Act, 1962, six months time is given for making an application for refund of the money from the date of the payment. From the documentary evidence as also from the oral evidence, it would appear that the plaintiff did not pay the duty under protest. As such, the exceptions made in case of duty paid under protest would not be attracted in this case. Under Section 17 of the Customs Act, after an importer enters in imported goods under Section 46 or an exporter enters in export goods under Section 50 the imported or the exported goods, as the case may be, or such part thereof as may be necessary may without undue delay, be examined and tested by the proper officer and after such examination and testing, the duty if any leviable shall be assessed. Even prior to the examination or testing thereof the proper officer may assess the duty on the basis of statement made in the entry and on the document produced and/or information furnished, as such whether the goods actually exported or not as soon as the goods are entered duty is leviable under Section 51 only after the duty has been paid and the proper officer is satisfied then only the officer would make an order permitting the clearance and loading of the goods for exportation. Under the various provisions of the statute the authorities have ample power and jurisdiction not only to assess but also to charge the duty in respect of goods which are going to be exported from India and it is only after the duty assessed and charged are paid, the proper officer may pass order permitting clearance and loading of the goods for exportation. So the act of the Customs Officer of levying duty in respect of the plaintiffs goods which were not in fact exported outside India because of the reasons as stated above could not be ultra vires, the provisions of the Customs Act nor could it be held to be mala fide. More, so in view of the fact that there has been no such allegations made by the platntiff either in the plaint or in its evidence. Where there is a special provision made in a statute for limitation the ordinary law of limitation is not applicable. Section 29, sub-Section, (20) of the Limitation Act provides that 'where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed under limitation Act those provisions shall apply to such extent as they are not expressly excluded. Nothing in the Limitation Act shall affect or alter any period of limitation prescribed in suit appeal or application by any special or local law.' In this respect reference may be made to : [1969]1SCR679 ; A.I.R. 1970, Supreme Court, page 638.

14. The amount of Rs. 75,792.46 as claimed in the plaint was not the subject matter of the application made by the plaintiff under Article 226 of the Constitution of India. As such, there was no injunction restraining the plaintiff from withdrawing the said amount, moreover any injunction order made in the said 226 application ceased to be of any effect on 30th January, 1969 and at that time nothing prevented the plaintiff from applying to the authorities for withdrawing the said sum from the defendant. Mr. Mullick's submission is that there has been an acknowledgement of liability made by the defendant in their Affidavit is unacceptable by me as from the language used in the Affidavit in opposition it would appear that the defendant has stated that the money was not payable to the applicant 'at this stage' that expression cannot be held to be a clear and unequivocal admission in law nor does it say that the amount claimed by the applicant would be payable in future. From the facts it would appear that by an order passed on 30th of January, 1969 the rule obtained by the plaintiff was disposed of by Mr. Justice T.K. Basu, J. and on 16th of September, 1969 an order was passed by the appeal court and finally the appeal was disposed of on 6th of March, 1970. The present suit has been filed by the plaintiff on the 21st of March, 1972. So from the fact it would appear that more than three years have lapsed before the plaintiff could make a claim for refund of the said amount.

15. So far as the said sum is concerned, the amount of Rs. 35,227.72 comprises of several sums paid on account of duty and the said amounts were paid on different dates in the year 1967. This particular amount of Rs. 35,227.72 from the part of Rs. 3,97,000/- and odd which was the subject matter of the 226 application. Although there was an order of injunction preventing the plaintiff from applying for refund but even after the rule was made absolute and there was no injunction order the plaintiff did not make any application for refund of the same in March, 1969. The plaintiff applied to the appeal court for the refund of the said sum but for the reasons best known to the plaintiff did not pursue the said application. After the appeal was disposed of on 16th of March, 1970 the plaintiff choose to file the suit after the lapse of a period of 2 years and 15 days from the disposal of appeal on 21st of March 1972. The sum of Rs. 75,792.46 did not form part of the sum Rs. 3,95,108.42. There was no injunction against the plaintiff from withdrawing the said amount paid. As such the order made in December 1972 did not affect the refund of duty consisting of this amount. The said amount of Rs. 75, 792, 46 were paid on account of the duty between 12th of June, 1967 and 17th of June, 1967.

16. There are ample provisions in the said statute for not only assessing but levying and also realising duties in respect of goods which are going to be exported outside India. In case the said goods are not exported provisions have been made in the said Act whereby a party can ask for a refund of duty paid in respect of goods which in fact has not been exported outside India. Whether such assessment could be termed as duty leviable or whether the said sum paid by the party as an advance payment becomes less relevant in this case. In view of the fact that the defendant has raised two important points for decision in this case. First of all, this court has no Jurisdiction to entertain this suit in as much as there is an ouster of jurisdiction of civil court under the provisions of the Customs Act in cases where the Customs authorities have acted in accordance with the law and bona fide. The plaintiff having made no allegations in the plaint that the actions taken by the Customs authorities were mala fide or ultra vires the Customs Act and remover in view of the facts as given in evidence in this case, lam of the opinion that the action taken by the Customs Authorities in respect of levying of duty in respect of goods which were not exported outside India, cannot be held to be mala fide or ultra vires the provisions of the Customs Act. There are series of decisions of the Supreme Court, that proposition of law. In this respect. Reference may be made to case reported in A.I.R. 40 Privy Council, page 105A, 47 Privy Council, page 78, 65 Calcutta Weekly Notes, page 1206, A.I.R. 1965 Calcutta, Page 577. : [1964]2SCR273 ; : [1963]50ITR93(SC) , : [1966]61ITR187(SC) ; : [1971]1SCR275 , : [1977]3SCR182 . From the case referred above, it would appear that there has been a uniform decision to the effect that the jurisdiction of the civil court may be excluded expressly or by clear implication arising from the scheme of the Act. Where the Legislature sets up a special tribunal to determine relating to rights or liablities which are the creation of statute the jurisdiction of the Civil Court would be deemed to be excluded by implication.

'An Importer or exporter aggrieved by the decision or order of the officer assessing the goods is given the right to appeal to the Chief Customs Authority or any other officer empowered by the Central Goven-ment. The remedies prima facie bar the civil courts jurisdiction, for it is difficult to imagine that, the legislature meant to give two parallel sets of forum to the aggrieved assessee. One in the civil courts and another before the executive hierarchy or that the legislature meant to give alternative sets of forum to the aggrieved assessee. The Sea Customs Act read with the Indian Tariff Act is a self contained Act ousting the jurisdiction of the Court.'

17. In a case reported in : [1966]61ITR187(SC) (State of Kerala v. N. Ramaswami Iyer) it has been held that 'The suit for refund of tax paid in excess of amount lawfully due, the jurisdiction of Civil Court was barred.'

18. In a case reported in : [1964]2SCR273 (Radha Kishan v. Administrator Municipal Committee (Ludhiana) it has been held that under Section 9 of the Civil Procedure Code the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognigance is either expressly or impliedly barred. A statute therefore, may expressly or by implication bar the jurisdication of the Civil Courts in respect of a particular matter where the special and particular remedy for the aggrieved party is provided the remedy provided by it must be followed. Even in such cases, the civil courts jurisdiction is not completely ousted, if the said authorities abuses its power or does not act under the Act but in violation of its provisions.

19. In a case reported in : AIR1965Cal517 (Tejman v. P.P. Anand) Mr. P.C. Mullick, J. held that 'The Scheme of the Sea Customs

Act, 1878, indicates that the determination of leviable duty and penalty for infringement including order of confiscation are to be determined by the Customs authorities. The aggrieved party must proceed by way of appeal and revision as provided in the Act itself. No parallel or alternate proceeding is permissible by way of suit in a civil court. The Legislature intended to oust the jurisdiction of the civil court completely in respect of all adjudications under the Sea Customs Act. The Ld. Judge followed the decision reported in 65, Calcutta weekly Notes, page 1206.'

20. Even if Mr. Mullick's submission be held to be correct that the amount which was paid by the plaintiff, was paid not by way of duty but it was paid by way of advance for further appropriation toward customs duty, as such the period of six months limitation has no application as no amount has been paid by way of duty, even then the plaintiffs claim becomes barred by the law of limitation and the plaintiff is not entitled to claim the refund of the sum in this suit Mr. Mullik's said that levy of duty in respect of goods not exported should be held to be ultra vires the statute is untenable.

21. In the case reported in : AIR1957All799 (Union of India v. Bhagwan Industries Ltd.), it was held that 'under the Tariff Act read with the Sea Customs Act an export duty becomes leviable when the goods are exported and not on goods which are not exported or which could not be exported. If for the sake of convenience the Government has framed rules for deposit of duty in advance of the export, the appropriation of duty takes place only when there is an actual export. If no export is made, there is no appropriation of the duty which is deposited in advance. The amount of duty which has been deposited but not appropriated would evidently be repayable to the person who has deposited the money unless there is some provision of law which bars the recovery of this amount.'

22. Whether the amount paid by the plaintiff was paid as duty or paid towards duty to be appropriated in future becomes less important, in view of the fact that the plaintiff's claim has become barred by the law of limitation in any event.

23. Under Section 155 of the Customs Act, 1962 no suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of the Act or the rules made thereunder. In this case there is no allegations of mala fide nor that the acts complained of were not done in accordance with provisions of the Customs Act in view of that, this suit does not lie against the Union of India or its officers.

24. In view of the facts and the law as stated above, I answer the issue in the manner following:-

I answer issues Nos. 1, 2 and 3 be negative, I answer the issues Nos. 4 and 5 in the positive, as such I dismiss this suit with costs.


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