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TMI Blog1973 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... te sum of Rs. 1,356. An appeal to the Customs Collector failed whereupon the appellant-company lodged a revision application before the Government of India. 3. Pending the disposal of the said revision, several other items set out in the said Annexure `D' arrived in Bombay port, in respect of which the Customs, refusing to accept their invoice price, charged the appellant-company with excess amounts as import duty. For fear that demurrage charges would have to be incurred, the appellant-company paid the excess duty charged as aforesaid, but under protest. 4. On March 20, 1957, the Government of India disposed of the said revision, accepting the Appellant's contention, and directed reassessment of import duty on the said two Items 1 and 2 on the basis of their invoice price and also ordered refund to the appellant-company of the excess duty charged on them. 5. It would seem that since the said revision was pending before the Government of India, the appellant-company thought that the Customs would follow the principle which would be laid down in the decision in the said revision. The appellant-company, therefore, abstained from filing appeals in respect of the other items ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner which were in time under Section 40 of the Sea Customs Act, out of the list forwarded with their letter dated 3-4-1957." Para 17 of the return was as follows : "I deny para No. 17 of the petition. I submit that whatever claims were found not in time as required by Section 40 of the Sea Customs Act have been correctly rejected by the Appraiser of Customs, Bombay." 8. It is clear from the return by the Union of India that : (a) refund was granted to the appellant-company in respect of the items referred to above without any appeal having been filed by the company relating to those items, (b) refund was granted in respect of those items simply on the ground that an application therefor had been made within the time prescribed by Section 40, and it was refused in respect of the rest of the items only because such an application therefor was not made within the time prescribed by Section 40, and (c) there was no plea that the excess duty was rightly charged on those items. 9. The learned Single Judge of the High Court who heard the writ petition held that Section 40 of the Act did not apply; that it applied to erroneous payments and not to erroneous assessments. He, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignments imported by the company was totally eradicated when the Government of India decided the Company's revision and directed that the invoice price should by accepted and duty should be assessed accordingly. In respect of the two items to which the revision related, the Government had also directed refund of the excess duty charged and paid under protest. There was thus no doubt or dispute left thereafter as regards the invoice prices being the real value of the consignments. The direction given in its decision in the said revision that the invoice price should be accepted as real value within the meaning of Section 30 of the Act applied to the rest of the consignments. The Customs authorities, therefore, were not right in law in charging excess duty on the rest of the consignments. Indeed, the excess duty was charged in violation of Sections 29 and 30 and in excess of jurisdiction, since, as held by the Government of India, the real value of the goods was their invoice price. 14. This position, indeed, was accepted by the customs authorities when they ordered refund of excess duty charged by them in relation to Items 22 to 29 and 33-35. Such refund could only have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indeed, their refusal to refund the excess duty both in their return and in the High Court was on the ground of the omission of the appellant-company to apply for the refund within the time provided by that section. It is necessary to emphasise that it was not their case that the invoice price of the items in question was not the real value or that the excess duty was lawfully levied or that the appellant-company was not entitled to the refund thereof for any reason except the omission to apply for it within the time prescribed by Section 40. But since Section 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some other provision of law. No other provision was pointed out by them which would disentitle the appellant-company to the refund on the ground of its right being time-barred or otherwise. No such provision other than Section 40 which disentitled the appellant-company to the refund having been put forward and the customs authorities not being entitled to retain the excess duty, there was a legal obligation on the part of the respondents to return the excess duty and a corresponding legal right in the appe ..... 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