TMI Blog1965 (6) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... dents made eight applications in Sept., 1958 for refund of the excess duty paid by them. Another application for refund of the excess duty paid in respect of the goods imported in May, 1959 was also made. On 31st Dec., 1958 the Asstt. Collector of Customs addressed a letter to the respondents in which he stated that in respect of the consignment received on 17th March, 1958 customs duty had been short-levied by Rs. 40,000.7 P. He added in his letter that a demand under section 39 of the Sea Customs Act, 1878, in respect of the excess amount of duty was time-barred, but he stated that payment of the amount, if made voluntarily, would be accepted. Thereafter there was considerable correspondence between the Customs authorities and the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed by Mr. Justice K.K. Desai who set aside the decision contained in the letter of the Asstt. Collector of Customs dated 28th July, 1962 and also directed Rs. 28,388.21 to be paid to the respondents. 2.Mr. Modi, on behalf of the appellants has raised various points. We are in the present case concerned with the former Sea Customs Act, 1878, which was in force at the time when the goods were imported. The first point, which Mr. Modi has urged, is that the liability to pay customs duty was imposed by section 20, that section 39 only creates a bar of limitation to the recovery of the customs duty which has not been levied or which has been short-levied, that it only extinguishes the remedy but that it does not also extinguish the liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may refuse to pass any goods belonging to such person until the said duties or charges or the said deficiency or excess be paid or repaid." 4.Mr. Modi has laid stress on the words "shall pay, on a notice of demand being issued to him". He has contended that this section, therefore, only provides a summary remedy for recovery of the amount of duty which has been short-levied. The remedy is to refuse to pass any goods belonging to the person concerned until the deficiency in duty has been paid. We have considered these arguments of Mr. Modi, but we find it difficult to accept them. Both sections 20 and 39 must be read together. If this is done, it will appear that when customs duty has been short-levied, not only the remedy to recover the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities was communicated to the respondents on 28th July, 1962. The petition was filed on 9th Oct., 1962. It cannot, therefore, be said that there had been unreasonable delay in approaching the court. The respondents no doubt could have pursued an alternative remedy by way of appeal to the Collector of Customs or other higher Customs authorities. The question whether a party should be granted relief on a writ application even though the alternative remedy is open to it is a matter of discretion of the Court. The learned Judge, who heard the petition, has exercised his discretion in favour of the respondents and we do not think that we will be justified in interfering with it. 6.So far as the second prayer for refund of the amount payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms and the Collector of Customs Mr. Modi has urged that no such order could have been made against these officers, that the order could only have been made against the Union of India, that on the date on which the petition was filed the Union of India was not subject to the jurisdiction of this Court under Article 226 of the Constitution and that, consequently, no relief with regard to the prayer for refund could have been granted. There is force in this argument. Since, however, the respondents are lawfully entitled to the amount claimed by them, we do not think we should dismiss the petition on this ground alone. The Union of India was a party to the petition. The Union of India is also one of the appellants. It has been conceded by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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