TMI Blog1973 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... ances we set aside the judgment of the High Court and allow the appeal. - 1799 of 1967 and 181 of 1967 - - - Dated:- 28-3-1973 - J.M. Shelat, AG. C.J. and Y.V. Chandrachud, J. [Judgment per : Shelat, J.]. - At all material times, the Appellant-company acted as the sole distributing agent in India for the products of M/s Sawyer's Inc., Portland, U.S.A., and as such used to import View-master stereoscopes, reels etc. The customs authorities used to levy import duty on the basis of the invoice price under Section 29 read with Section 30 of the Sea Customs Act, 1878 as being the real value of the goods so imported. 2. During the year 1954-55, the appellant company imported several items set out in Annexure `D' to the appellant's special leave petition, the details of which it is not necessary to set out here. When Items 1 and 2 arrived in Bombay port, the Customs authorities, ignoring their hitherto followed practice, refused to accept the invoice price as the real value and levied excess duty in the aggregate sum of ₹ 1,356. An appeal to the Customs Collector failed whereupon the appellant-company lodged a revision application before the Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled to appropriate or retain the said excess duty, (c) the appellant-company had a legal right to the return of the said excess duty, and (d) that there was an error apparent on the record in the orders refusing return of the excess duty. The appellant-company on these pleas prayed that the said orders of refusal should be quashed and an order should be passed directing return of the excess duty. 7. In para 16, sub-paras (i) and (j) of its return the Union of India averred as follows :- (i) With reference to Clause (1) of para No. 16 of the petition, it is correct that the Government of India cannot appropriately retain whatever they are not legally entitled to. But I submit that the importers are also required to put in the claim in time as required by law. I deny that the petitioner has a legal right to the return of the excess customs duty levied on all the consignments. (j) I deny and controvert the allegations made in clause (j) of para No. 16 of the petition. I say that the Bombay Customs House allowed some claims of the petitioner which were in time under Section 40 of the Sea Customs Act, out of the list forwarded with their letter dated 3-4-1957. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the real value of imported goods has to be ascertained where the Customs Collector has any doubt as regards their declared value. Section 30 then defines real value to be the wholesale cash price, less trade discount, for which goods of the like kind and quality are sold or are capable of being sold at the time and place of importation. Section 31 provides that goods chargeable with duty upon the value thereof but for which a specific value is not fixed by law for the purpose of levying duties thereon, shall, without unnecessary delay, be examined by the officer of customs. If it appears that the real value of such goods is correctly stated in the bill of entry or shipping bill, the goods shall be assessed in accordance therewith. 13. There is no dispute that the appellant company had declared the real value of the articles imported by it and in support thereof had produced the manufacturer's invoices. The Customs authorities had refused to accept the invoice price as real value and charged excess duty. But any doubt with regard to the real value of the several consignments imported by the company was totally eradicated when the Government of India decided the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that charging of excess duty was not warranted under the Act, and that the value on which duty should have been assessed was the invoice price and nothing else. That being the position, Section 40 did not apply and could not have been relied upon by the Customs authorities for refusing to refund the excess duty unlawfully levied on the appellant-company. 17. From the fact that the Customs authorities refunded the excess duty on Items 22 to 29 and 33-35, it follows that the Customs authorities had fully realised that the excess duty had been levied without the authority of law, for otherwise they would not have agreed to refund it, and further that they could not lawfully retain it. If the Customs authorities were not entitled to levy the excess duty and retain it, they were bound to return it to the appellant company who had paid it under protest and only with a view not to incur demurrage charges, unless there was some provision of the Act which debarred the appellant-company from recovering it. 18. The only provision relied on by the customs authorities was Section 40 of the Act. Indeed, their refusal to refund the excess duty both in their return and in the High Court wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s disposed of. _______ CORRIGENDUM TO 1982 E.L.T. 917 (Bom.) After Ist para on page 937, kindly insert the following paras, which were somehow left out at the time of printing. The inconvenience caused is regretted. 51. Having regard to these decisions, it would not have been possible to accept the contentions on behalf of the respondents that no order for refund could be made in this petition. 52. We were also not inclined to entertain the argument that the petitioners have not restored to their remedies under the Excise Act and the Rules. It is obvious that any approach under the Rules or under the Act to the Authorities constituted under the Excise Act or the Rules would have been futile because the stand taken by the Union of India itself is that the levy is not illegal. 53. We therefore, hold that (1) the product of the petitioners, namely, polyester polymer or polymer chips fibre grade are synthetic resins covered by Item 15A, (2) if we are not right in this conclusion, the petitioners would be entitled to a refund of excise duty recovered for a period of three years prior to the filing of the petition. However, in the view which we have taken, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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