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TMI Blog2011 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ed three consignments of spares and duly filed the Bills of Entry dated 10.06.2002 and 25.06.2002 in respect of these imported goods. These imported goods are covered by List 12 of Notification No. 21/2002, Customs, dated 01.03.2002 as goods exempted from customs duty on fulfilling Condition 29 of the said Notification, which requires the importer to produce Essentiality Certificates issued by Director General of Hydrocarbons [hereinafter referred to as `the DGH'] to the effect that these imported goods were required for the petroleum operations. The DGH issues the Essentiality Certificates only on the strength of recommendatory letters issued by ONGC. 4) The appellant had requested ONGC to issue recommendatory letters in order to enable the DGH to issue the Essentiality Certificates, which were not granted. The DGH, in the absence of such recommendatory letters, refused to entertain the appellant's request for the Essentiality Certificates. 5) In this backdrop, the appellant requested the Customs authority, vide endorsement on Bill of Entry presented on 10.06.2002 for one consignment and vide letter dated 28.06.2002 for other twoconsignments, to make provisional as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with them by taking into consideration the essentiality certificates, issued on the petitioners by Respondents No. 2. We further direct that the said applications shall be disposed of by a speaking and reasoned order after giving an opportunity of hearing to the petitioners. The applications shall be disposed of as expeditiously as practicable but in any case not later then eight weeks from the date of receipt of a copy of this order." (Emphasis supplied) 8) Accordingly, the appellant filed refund claim dated 06.05.2003 and 04.06.2003 in respect of the customs duty paid on the import of the said three consignments, which was rejected by the Deputy Commissioner of Customs vide its order dated 23.12.2004 on the ground of unjust enrichment and failure to challenge the assessment of the Bills of Entry by filing an appeal before the Appellate Forum. Reliance was also placed on the judgment of this court in CCE v. Flock (India) (P) Ltd., (2000) 6 SCC 650 and Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive), (2005) 10 SCC 433. Being aggrieved, the appellant preferred an appeal against the Order of Deputy Commissioner of Customs before the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order. In other words, if the claim for refund is permissible only after filing of an appeal by the party, then Section 27 of the Act will become redundant as the appeal proceedings would never be over within abovementioned period. In this regard, learned senior counsel further argues at great length by analyzing Section 27 of the Act in view of its legislative history and the philosophy and the broad scheme of the Act vis-`-vis Central Excise Act, 1944 and Income Tax Act, 1961. He further contends that decisions of this Court in Flock (supra) and Priya Blue (supra) have ignored or not considered the decision of nine Judge-Bench of this court in Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, which suggests that if the duty has been collected contrary to law, i.e., on account of a misinterpretation or misconstruction of a provision of law, rule, notification or regulation and the assessment order has attained finality, then the assessee is entitled to claim refund in accordance with section 11B of Central Excise Act, 1944 read with Rule 11 of the Central Excise Rules, 1944 on account of subsequent discovery of such mistake of law by any judgment of High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 16) In Dwarkanath v. ITO, AIR 1966 SC 81, this Court pointed out that Article 226 is designedly couched in a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a denial of justice and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on the hierarchy of courts. The facts of the present case are more or less similar and we would have allowed the matter to rest at that but unfortunately the judgment of the High Court directing the issue of a writ of mandamus for the grant of a liquor licence to Respondents 1 and 2 cannot be sustained." 19) We hasten to add, if for any reason, the subordinate authority is of the view that the directions issued by the Court is contrary to statutory provision or well established principles of law, it can approach the same Court with necessary application/petition for clarification or modification or approach the superior forum for appropriate reliefs. In the present case, as we have already noticed, the respondents have not questioned the order passed by the High Court, which order has reached finality. In such circumstances, we cannot permit the adjudicating authority to circumvent the order passed by the High Court. 20) Therefore, in our view, the refund claim of appellant has been erroneously rejected by the Deputy Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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