TMI Blog2021 (2) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... o or from India or between Ports in India - Light Dues are directly related to tonnage of the ship/vessel and excess payment can occur when payment of Light Dues is made disproportionately disregarding the tonnage of the ship. Shipping companies and shipping agents are expected to measure the tonnage of the ship/vessel correctly and pay Light Dues with due regard to notified rates. Excess payment of Light Dues may occur if the shipping companies/agents cause mistake in the tonnage of the ship or in respect of notified rates. It is for the refund of such excess payment effected by the shipping companies/shipping agents without regard to the tonnage of the ship or rate of Light Dues, that a period of limitation has been prescribed under Section 19. The dual payment made by the petitioner in this writ petition cannot be described as excess payment, in the sense contemplated by Section 19 of the Lighthouse Act, 1927. What is effected by the petitioner is a dual payment or duplicate payment. The petitioner was forced to make such dual payment due to the failure of the web portal system to generate a receipt, when the petitioner made the first payment through the web portal. This Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portal. The petitioner was under the impression that the online payment had not gone through. The vessel was to arrive in the evening and in the absence of proof of payment of Light Dues, the petitioner would have faced difficulties. The petitioner therefore made a manual payment of ₹ 6,33,144/- before the Cochin Customs, for which Ext.P2 receipt was issued. On the following day, the petitioner-Company received receipt for the payment made online. The petitioner accordingly and unintentionally made dual payment. 3. The petitioner would submit that though the double payment was made in the year 2016, due to the resignation of the Accountant of the petitioner soon thereafter, the petitioner failed to take appropriate steps to get back the duplicate payment made. When the Auditors of the petitioner noted the dual payment, the petitioner submitted Ext.P3 letter to the 2nd respondent-Commissioner of Customs seeking repayment of the duplicate payment. Ext.P3 was acknowledged as per Ext.P4 dated 31.05.2018. 4. The 2nd respondent, however, instead of repaying the duplicate payment, advised the petitioner to file an application for refund before the Assistant Commissioner of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Lighthouse Act, 1927. The Director General of Lighthouses and Lightships does not have any role on the subject. The additional 3rd respondent stated that the petitioner is not legally entitled to any relief. 8. I have heard Sri. Joy Thattil Ittoop, counsel for the petitioner, Sri. Sreelal N. Warriar, learned Standing Counsel for the 2nd respondent and Sri. K.R. Rajkumar, Central Government Counsel appearing for the additional 3rd respondent. 9. There is no dispute that the amount payable by the petitioner towards Light Dues in respect of the vessel MV Cape Chronos arrived at the Cochin Port Trust on 09.05.2016, is ₹ 6,33,144/-. It is also not disputed that the petitioner has made two payments towards the same Light Dues on 09.05.2016. However, the application filed by the petitioner for refund was rejected by the Assistant Commissioner of Customs, on the ground of limitation. The appeal was also rejected on the same ground. The question to be considered is whether the delay will spoil the right of the petitioner for refund of dual payment/duplicate payment. 10. Section 19 of the Lighthouse Act, 1927 provides that where Light Dues have been paid in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout regard to the tonnage of the ship or rate of Light Dues, that a period of limitation has been prescribed under Section 19. 15. The Supreme Court had held in the judgment in Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf [AIR 1959 SC 135] that refund of sales tax paid under a mistake of law could be claimed based on Section 72 of the Indian Contract Act, 1872. The court examined the scope of Section 72 and held that a person who pays money either under a mistake of law or of fact, is entitled to recover the amount so paid, and the party receiving the same is bound to repay or return it irrespective of any consideration whether the money had been paid voluntarily, subject however to questions of estoppel, waiver, limitation or the like. That was a case where the levy was made under a law which was subsequently held to be unconstitutional and the Apex Court held that as far Section 72 was concerned, there was no distinction between a tax liability and any other liability and, therefore tax paid under a mistake of law under the enactment in question could be got refunded. 16. The principle of this decision was applied by the Hon'ble Apex Court in State of Kera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was entitled to refund of the amount collected illegally. 18. In Mahabir Kishore v. State of Madhya Pradesh [AIR 1990 SC 315], the Hon'ble Apex Court considered the starting point of the period of limitation of three years for a proceeding of this nature. The Hon'ble Apex Court held that when money is paid under a mistake of law, the period of limitation for recovery of the amount does not begin to run until the date on which the plaintiff discovers the mistake or could with reasonable diligence have discovered the mistake. Article 113 of the Schedule to the Limitation Act, 1963 and the provisions of section 17(1)(c) of that Act apply in such cases. 19. The dual payment made by the petitioner in this writ petition cannot be described as excess payment, in the sense contemplated by Section 19 of the Lighthouse Act, 1927. What is effected by the petitioner is a dual payment or duplicate payment. The petitioner was forced to make such dual payment due to the failure of the web portal system to generate a receipt, when the petitioner made the first payment through the web portal. This Court is of the view that Section 19 is not intended to operate in such circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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