TMI Blog1978 (6) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ult, notice with regard to non-shipment or short shipment of the said goods was duly filed with the customs authorities of the defendant. According to the plaintiff as no goods were exported-from India no duty whatsoever could be levied and/or collected under the Indian Tariff Act, 1934 and/or Customs Act, 1962. As such the plaintiff became entitled to receive from the defendant and the defendant was obliged to refund the said sum of Rs. 35,227.72 to the plaintiff. The plaintiff also presented-in the year 1967 at the Customs house, Calcutta diverse other shipping bills full particulars whereof would appear from paragraph 7 of the plaint. In respect of the said goods the plaintiff paid a total sum of Rs. 75,792.46 according to the plaintiff by way of advance payment to be appropriated or adjusted towards customs duty that might be payable upon the actual exportation of the said jute goods. According to the plaintiff, the customs authorities illegally and wrongfully detained the said goods and wrongfully alleged that the said goods were liable to be confiscated for alleged contravention of the provisions of the Foreign Exchange Act, 1947. The Assistant Collector of Customs issued sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and order dated 30th January, 1962 and it was further directed that the customs authorities would deposit within fortnight from date a sum of Rs. 5,59,145 .42 held by them in the State Bank of India in fixed deposit to fetch the best possible interest and that amount would be held subject to further order of the Hon'ble Court. The said sum of Rs. 5,59,145.42 comprised the said sum of Rs.3,95,103.42which had been paid by the plaintiff on account of duty and a sum of Rs. 1,64,042 representing the sale proceeds of the goods sold by the customs authorities pursuant to order of this Hon'ble Court. The appeal filed by the customs authorities was dismissed on 6th March, 1970 and the judgment and order which was passed by the Hon'ble Mr. Justice T.K. Basu on 30th January, 1969 became final and binding on the parties. After the dismissal of the appeal the plaintiff called upon the customs authorities to refund the said sum of Rs. 5,59,145.42 but the Customs authorities only returned to the plaintiff a sum of Rs. 5,24,632.42 and according to the plaintiff wrongfully and arbitrarily refused to pay to the plaintiff the said sum of Rs. 35,227,72 although that sum was included in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s denied its liability or obligation to refund the said sum of Rs. 35,227.72 as according to the defendant the plaintiff has failed and/or neglected to lodge claim for refund of duty in the manner as laid down by the Customs Act, 1962. The defendant has admitted the payment of Rs. 75,792.46 against the shipping bills. The defendant has stated in the written statement that as loose deals were apprehended, the goods were seized and confiscated for contravention of the Foreign Exchange Regulation Act. 5. The defendants case is that the said sum was paid towards payment of duty against the shipping bills and not by way of advance on account of duty as claimed by the plaintiff. According to the defendant the payment represented the amount of duty which was not refundable as the plaintiff did not follow the procedure for refund as provided under the Customs Act. According to the defendant the claim of the plaintiff for refund is untenable in view of the mandatory provisions of Section 27 of the Customs Act read with Short Export Rules, 1963. The defendant has also denied that it has acknowledged its liability by way of affidavit or by letters. As no claim has been preferred within 6 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were purported to be sent to Italy which was not permissible under the Rules. Moreover, the Customs authorities suspecting this transaction to be a Switch transaction, issued show cause notice on the plaintiff and confiscated the said goods and imposed a penalty for violation of the Foreign Exchange Regulation Act. The main dispute by and between the parties is that first of all whether the amount realised by the Customs authorities was a duty levied as envisaged by the Customs Act, 1962 and if so then whether such duty is refundable to the plaintiff on account of non-exportation of the said goods outside India. The main defence of the defendant is that as the said sum was paid by the plaintiff by way of duty and not paid under protests that could only be refundable to the plaintiff provided the plaintiff followed the statutory procedure by applying for refund to the Customs Authorities within 6 months from the date of the payment. As the plaintiff only filed notices of short shipment but did not file any application nor did the plaintiff make any endorsement for refund on the said short shipment notice within 6 months as provided under Section 27 of the Customs Act the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities, for and on behalf of the plaintiff and that sum was never refunded by the Customs authorities. In the said 226 application the Rule obtained was made absolute. From that the Customs authorities preferred as appeal which was ultimately dismissed. He has further deposed to the effect that in the affidavits affirmed on behalf of the defendant by Arbinda Mohas Sinha were the defendant was stated that money was not payable to the plaintiff "at that stage" until and unless the rights of the parties were finally decided. After the disposal of the said appeal a sum of Rs 5,00,000/- has been returned by the defendant to the plaintiff but the defendant failed and neglected to pay the said sum of Rs. 35,227.72 and Rs. 75,792.46. He has further deposed regarding filing of the short shipment notices. He has admitted that there is no endorsement either on the shipping bill or on the short shipment certificates claiming refund of the sums mentioned therein. Although he said in answer to question 210 that there is a claim for refund in the short shipment notice but he could not point out where such claim had been made by him. In answer to question 243 he has stated that he does not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of goods, duty is leviable and assessed as soon as the goods are brought in the Customs shed before the customs authorities and actually before the goods are despatched. According to him as soon as a number is put on the shipping bill that indicates that the assessed amount has been paid by the party and that number indicates that the shipping bill has been processed and assessment has been certified by the officer. According to him, at the time of payment of the duty no protest was made by the assessee as nothing appears on the bill. Had there been any protest made by the assessee there would have been such an endorsement on the shipping bill. He has proved the signature of the officers who have processed the shipping bills. According to him, this practice of charging duty before the goods actually shipped is under the export manual. lt is his positive evidence that in case of export, all goods are actually assessed and charged before the goods are exported. Although he was suggested that any money which was paid by the assessee before the goods are actually exported the same is not paid by way of advance payment which is to be adjusted ultimately with the Customs duty, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er such examination and testing the duty, if any, leviable on such goods, shall be assessed. There is also provision for provisional assessment of duty under Section 18 of the said Act. According to Mr. 13anerjee, not only under the provisions of the Customs Act but also under the practice and procedure followed by the Customs authorities duty is in fact levied and charged before the goods are actually exported outside India. The duties so paid can be refunded to the exporter if the goods are not exported as if they are short shipped provided the assessee makes a claim for refund before the expiry of 6 months from the date of payment of the duty. But that period of limitation has no application where the duty is paid under the protest. In case of any order being made in appeal or revision under the said Act the duty would be refunded in the case of assessee having made any claim to that effect under Section 27(4) it is provided that no claim for refund of any duty shall be entertained except in accordance with the provisions of that section. Under Section 51 of the Customs Act only, where the proper officer is satisfied that any goods entered for export are not prohibited the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment to that effect. As such until and unless it is shown by the plaintiff that the action taken by the authorities is ultra vires the Customs Act or any Act or has been done in good faith then only a civil suit lie to consider the claim made and civil courts jurisdiction would be attracted. Mr. Banerjee has submitted that the plaintiff has not made out such a case in the plaint either of male fides or of violation of the provisions of the Customs Act, as such the defendant is not expected to meet the case purpored to be made out by one of the partners of the plaintiff from the witness box and also of the case as has been made out by Mr. Mallick in his argument. The defendant has also taken the point that as the plaintiff has not made an application for refund within six months the claim of the plaintiff is barred by the law of limitation. The defendant has also taken the point that even assuming that the plaintiff's case is not governed by Section 27 of the Customs Act but in view of the fact that the appeal was disposed of on 6.3.70 and although in spite of a direction given by the Appeal Court for making an application for refund of the said sum of Rs. 1,10, 000/- the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the board and under section 131 provisions have been made for revision to the Central Government. Section 155 provides for protection of action taken under the Customs Act. By reading Section 155, it would clear that no suit or prosecution or other legal proceedings can be brought against the Central Government or any other officer of the Government for any thing done or intended to be done in good faith and in pursuance of this Customs Act or the rules and regulations framed thereunder. The Customs Act itself is a complete code and provides for assessment collection procedures and also remedies unless there is allegations of bad faith or of facts which would show that any action taken were not in accordance with the provisions of this Act no suit will lie in a civil court. In this respect reference may be made to A.l.R. 1940, Privy Council, page 105, 65 Calcutta Weekly Notes page 1206, AIR 1965 Calcutta, page 517. Specific provisions regarding the claim for refund of the duty has been made or for money paid in the act itself. The plaintiff must follow the procedures as laid down under the Act. The jurisdiction of the Civil Court is only attracted in cases where there has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ordinary law of limitation is not applicable. Section 29, sub-section (20) of the Limitation Act provides that `'where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed under limitation Act those provisions shall apply to such extent as they are not expressly excluded. Nothing in the Limitation Act shall affect or alter any period of limitation prescribed in suit appeal or application by any special or local law." In this respect reference may be made to A.I.R. 1969 Supreme Court, page 872 at 877; A.I.R. 1970, Supreme Court, page 638. 14. The amount of Rs 75,792 46 as claimed in the plaint was not the subject matter of the application made by the plaintiff under Article 226 of the Constitution of India. As such, there was no injunction restraining the plaintiff from withdrawing the said amount, moreover any injunction order made in the said 226 application ceased to be of any effect on 30th January, 1969 and at that time nothing prevented the plaintiff from applying to the authorities for withdrawing the said sum from the defendant. Mr. Mullick's submission is that there has been an acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. In case the said goods are not exported provisions have been made in the said Act whereby a party can ask for a refund of duty paid in respect of goods which in fact has not been exported outside India. Whether such assessment could be termed as duty leviable or whether the said sum paid by the party as an advance payment becomes less relevant in this case. In view of the fact that the defendant has raised two important points for decision in this case. First of all, this court has no jurisdiction to entertain this suit in as much as there is an ouster of jurisdiction of civil court under the provisions of the Customs Act in cases where the Customs authorities have acted in accordance with the law and bona fide. The plaintiff having made no allegations in the plaint that the actions taken by the Customs authorities were male fide or ultra vires the Customs Act and remover in view of the facts as given in evidence in this case, I am of the opinion that the action taken by the Customs Authorities in respect of levying of duty in respect of goods which were not exported outside India, cannot be held to be male fide or ultra vires the provisions of the Customs Act. There are se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts jurisdiction is not completely ousted, if the said authorities abuses its power or does not act under the Act but in violation of its provisions. 19. In a case reported in A.I.R. 1965, Calcutta, page 517 (Tejnan v. D.P. Anand) Mr. P.C. Mullick, J. held that "The Scheme of the Sea Customs Act, 1878, indicates that the determination of leviable duty and penalty for infringement including order of confiscation are to be determined by the Customs authorities. The aggrieved party must proceed by way of appeal and revision as provided in the Act itself. No parallel or alternate proceeding is permissible by way of suit in a civil court. The Legislature intended to oust the jurisdiction of the civil court completely in respect of all adjudications under the Sea Customs Act. The Ld. Judge followed the decision reported in 65, Calcutta weekly Notes, page 1206." 20. Even if Mr. Mullick's submission be held to be correct that the amount which was paid by the plaintiff, was paid not by way of duty but it was paid by way of advance for further appropriation toward customs duty, as such the period of six months limitation has no application as no amount has been paid by way of duty, even t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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