TMI Blog1993 (2) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia, booking and arranging the loading of cargo on vessels. M/s. Ceylon Shipping Corporation is one of such ship-owners for whom the company acts as its agent. On June 7, 9 and 12, 1989, the said ship-owner sent 227 Nos. durable empty containers made of iron and steel from Bombay Port to Calcutta Port for stuffing export cargo. Though the applicant represented to the respondent No. 3 that the containers were not for consumption, use or sale in Calcutta Metropolitan Area and so, entry tax could not be levied under the Act of 1972, the said respondent illegally assessed and collected a sum of Rs. 72,000 from the applicant as entry tax. The applicant preferred appeals before the Assistant Director of Entry Tax (respondent No. 2). By a judgment dated March 27, 1991, which was communicated to the applicant by Memo. No. AP. 4986 Cal/E.T. dated March 28, 1991 on April 3, 1991, the assessment was annulled and a sum of Rs. 72,000 was ordered to be refunded to the applicant. On May 15, 1991 the applicant addressed an application for refund to the Assistant Director of Entry Tax under certificate of posting. Since the applicant did not receive any reply to the said application for refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (3) of section 19 of the Act of 1972 and rule 25 of the Rules thereunder respectively, was entirely illegal. 4.. Mr. Khaitan's second objection is that even assuming that the provisions of section 19(3) of the Act of 1972 are applicable, the applicant had, in fact, made an application within time, i.e., on May 15, 1991 to the respondent No. 2 for refund. The said respondent No. 2 is one of the persons who has been delegated the powers to sanction refund. The rejection of the refund application by the respondent No. 1 was, therefore, entirely illegal. 5.. Lastly, Mr. Khaitan has also challenged the vires of section 19(3) of the Act of 1972 and rule 25 as these provisions run counter to article 265 of the Constitution of India inasmuch as under these provisions a substantive right to refund has been taken away by providing a time-limit of 60 days and a particular form being form XI. 6.. The respondents have contested the case by filing an affidavit-inopposition. Their case in short is that as a result of the appellate order passed on March 27, 1991 by the Assistant Director, Entry Tax, a sum of Rs. 72,000 was found to be refundable to the applicant. But, in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are required to see whether the retention of the amount against an assessment which has been totally annulled in appeal is legal and valid. 8.. The applicant has supplied xerox copy of the judgment in appeal passed by the learned Assistant Director, Entry Tax (annexure "A" to the affidavit-inreply by the applicant). The judgment tends to show that the assessment was annulled as the empty containers were not used, consumed or sold within the Calcutta Metropolitan Area and as such containers were totally exempted under G.O. No. 2966-F.T. dated September 28, 1989. The applicant's case is that he had represented before respondent No. 3 as well as respondent No. 2 that the empty containers were not exigible to entry tax as those were not used, consumed or sold within the Calcutta Metropolitan Area. The appellate authority, i.e., respondent No. 2 here, had accepted the contention of the applicant and annulled the assessment. The entire assessment having been annulled, an application within 60 days for refund of excess payment as provided under sub-section (3) of section 19 of the Act of 1972 does not appear to be necessary. Sub-section (3) of section 19 of the Act of 1972, reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and rule 25 of the Rules made thereunder. In this view of the matter, we do not think it is necessary to express any opinion about the vires of sub-section (3) of section 19 of the 1972 Act or of rule 25 of the Rules made thereunder as we are of the view that those provisions are not attracted in the present case. 9.. Mr. Khaitan's second ground is that even assuming that section 19(3) of the 1971 Act is applicable in the present case, the applicant has substantially complied with the requirement of the said provisions and of rule 25 of the Entry Tax Rules as the applicant had, in fact, addressed an application to the Assistant Director on May 15, 1991, i.e., within 60 days from the date of the order passed in appeal. In paragraphs 11 and 12 of the main application, the applicant has categorically stated that the letter dated May 15, 1991 (copy of which is marked as annexure "D" to the main application) was sent to the Assistant Director of Entry Tax. In paragraph 12 of the main application, the applicant has stated that its representative met the respondent, Assistant Director and on his advice approached the Superintendent of Claims and Refund for the refund and sent an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed this delegation of powers, duties and functions but he has contended that, in practice, it is the Superintendent of Claims and Refund who deals with the refund payment of taxes. On the fact of such delegation of powers, duties and functions, it is difficult to accept the Superintendent of Claims and Refund, Entry Tax, as the only authority to refund payment of tax. It is true that, while applying for refund to the Assistant Director of Entry Tax on May 15, 1991, the applicant did not comply with the requirement of filing an application in form XI as required by rule 25 of the Entry Tax Rules. But mere failure to apply in a specified form prescribed by the Rules cannot deprive the applicant of his substantive right to get his refund. Mr. Bose has conceded that the prescription of the form XI is only to facilitate refund payment of tax and the prescription is only directory. In the facts and circumstances of the present case, the refusal by the Superintendent, Claims and Refund, respondent No. 1, to refund the sum of Rs. 72,000 to the applicant by an order dated September 13, 1991 was not warranted. The said Superintendent assigned no reason whatsoever as to why the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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