TMI Blog2015 (2) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... tunnel boring machines were not exigible to any duty, any sum paid into the exchequer by the petitioners was not duty or excess duty but simply money paid into the government account. The government could not have claimed or appropriated any part of this as duty or interest. Therefore, there was no question of refund of any duty by the government. The money received by the government, could more appropriately called money paid by mistake by one person to another which the other person as an obligation to repay, under Section 72 of the Contract Act, 1962. A person to whom money has been paid by mistake by another person, becomes at common law a trustee for that other person with an obligation to repay the sum received. This is the equitable principle on which Section 72 of the Contract Act, 1872 has been enacted. Therefore, the person who is entitled to the money is the beneficiary or cesti qui trust. When the said sum of ₹ 360.46 lakhs was paid by mistake by the petitioner to the government of India, the latter instantly became a trustee to repay that amount to the petitioner. The obligation was a continuing obligation. When a wrong is continuing there is no limitation for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nture is unincorporated. For all purposes they are represented by the first and second writ petitioners. The reference to the petitioners in this judgment will also include the Joint Venture ITDITD CEM JV. Kolkata Municipal Corporation was inviting tenders, in or about 2008 for its Drinking Water Supply Project. The Corporation invited offers for designing and supplying of reinforced cement jacketed pipe cast monolithically, with a 1626 mm outside diameter, spirally welded carrier steel pipes with cement mortar lining inside to be laid by micro tunneling/pipe jacking system at about 7.0 m to 8.0 m depth below the ground level for an approximate length of 15.80 km along BT Road from Park Road to BT Road Junction to Tallah Pumping Station with a small stretch of about 0.50 km between Palta Indira Gandhi Water Treatment Plant and Park Road. The Joint Venture Company was successful in tendering. They were awarded Contract No. 25 dated 13th April, 2009 by the Corporation. The dispute in this case is not with regard to the above contract but with regard to whether Customs duty was payable on the importation of tunnel boring machines by the petitioners. By and under three Bills of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 157 of the Customs Act, 1962. These regulations make it explicit that they would apply to assessment and clearance of goods under heading 98.01 of the First Schedule to the Customs Tariff Act, 1975. Under these regulations assessment could only be made under heading No. 98.01 if one or specific contracts were registered with the customs. Mr. Das argued that this contract between the petitioner and the Kolkata Municipal Corporation was not so registered. In those circumstances, the petitioner was not entitled to claim any exemption under the said exemption notification relating to heading No. 98.01. In any event according to Mr. Das a claim for refund had to be made within time by the petitioner under Section 27 of the Customs Act 1962. The petitioner had merely made an application before the customs on 4th June 2013 seeking refund which could not be taken as a proper application under Section 27 for refund. In any event, it was hopelessly out of time. I will discuss the cases cited by the parties when I discuss the merits of the matter. If one examines the various classification lists one would tend to form an opinion that the description Drinking Water Supply Projects for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the duty or interest must be leviable under the Customs Act and paid under it. Any excess sum allegedly paid has to be claimed within one year. When the petitioners case is that the tunnel boring machines were not exigible to any duty, any sum paid into the exchequer by the petitioners was not duty or excess duty but simply money paid into the government account. The government could not have claimed or appropriated any part of this as duty or interest. Therefore, there was no question of refund of any duty by the government. The money received by the government, could more appropriately called money paid by mistake by one person to another which the other person as an obligation to repay, under Section 72 of the Contract Act, 1962. Now I will consider the point of limitation. A person to whom money has been paid by mistake by another person, becomes at common law a trustee for that other person with an obligation to repay the sum received. This is the equitable principle on which Section 72 of the Contract Act, 1872 has been enacted. Therefore, the person who is entitled to the money is the beneficiary or cesti qui trust. When the said sum of ₹ 360.46 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were imported between 15th December 2009 and 31st May 2010. This is how the petitioners have explained their mistake. 10. On or about September 2012 the said joint venture as a bidder of similar kind of works Project with the Kolkata Municipal Corporation for drinking water for human and animal consumption while processing the said Tender discovered that a sum of ₹ 360.46 lakhs was paid under bona fide mistake as Customs duty on account of import of the said Boring Tunnel machines when the same are wholly exempted. Your petitioners state that the said joint venture has already been paid customs duty upon import of any other machines and have not ever raised any dispute. However, upon detection of the factum was being paid by way of customs duty under bona fide mistake the said joint venture immediately their Advocate by a letter dated June 4, 2013 submitted representation before the Respondent No.1 and 2 apprising them of such bona fide mistake committed by the said joint venture and prayed inter alia, for return of the said sum of ₹ 360.46 lakhs which is being unlawfully retained as customs duty on account of the import of the said machines which is otherwise exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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