TMI Blog1986 (12) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 15,688.94. By order dated September 26, 1986 the Assistant Collector of Customs, Refund Department, rejected the claim on the ground that the same is barred by limitation under Section 27(1) of the Customs Act. The order passed by the Assistant Collector has given rise to filing of this petition on October 22, 1986 under Article 226 of the Constitution of India. The relief sought by the petitioner is a declaration that Section 27 of the Customs Act, 1962 is unconstitutional, illegal, null and void and for setting aside the order passed by the Assistant Collector and for refund of the duty along with interest at the rate of 18% per annum. 2. Shri Kantawala, learned Counsel appearing on behalf of the petitioner, did not advance any submission in respect of prayer for declaration that Section 27 of the Customs Act is unconstitutional. The learned Counsel restricted his submissions to the claim that the impugned order of the Assistant Collector is contrary to law and the petitioner is entitled to seek refund of the amount claimed. It was urged by the learned Counsel that additional duty at the rate of 10% ad valorem was charged under Section 3 of the Customs Tariff Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohol, the exclusion claimed under Tariff Item 68(a) is not available. The learned Counsel finally submitted that even if the Central Excise duty is not payable, additional duty of customs can still be levied. 3. Before examining the claim of the petitioner on merits, it is necessary to deal with the preliminary objection of Shri Sethna that the petition should not be entertained as the petitioner has alternate efficacious remedy. It was urged that the impugned order passed by the Assistant Collector is appellable and therefore the writ petition should not be entertained. The submission has no merit on the facts and circumstances of the case. The refund application has been rejected on the ground that it was filed six months from the date of payment of duty, and therefore, cannot be entertained under Section 27(1) of the Customs Act. It is now well settled that the Customs authorities while determining the refund application are regulated by the provisions of the Customs Act, but in case the duty is paid by the importer under mistake of law, then the period of limitation set out under Section 27(1) of the Act would not be attracted. In these circumstances no worthwhile purpose wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the circular on October 1, 1984, and therefore, it must be presumed that the petitioner had knowledge of the correct position of law, but inspite of that the petitioner paid the duty on November 24, 1984 and did not bother to file a refund application till August 5, 1986. This conduct, says Shri Sethna, clearly indicates that the petitioner is guilty of serious laches and therefore the petition should not be entertained. Indeed, Shri Sethna doubted the claim of the petitioner that he was not aware of the correct position of law at the time of paying the duty. The submission of the learned Counsel overlooks that if there is a presumption that the petitioner should know the correct position of law when decision was recorded by the Tribunal and Circular was issued by the Central Board of Excise, then there is a greater presumption to hold that the Department and the officers of the Collectorate very well knew the exact position of law and should not have recovered the duty from the petitioner. It is easy to suggest that the petitioner should know the law but the Department may ignore it and/or inspite of knowledge that duty is not recoverable the officers of the Collectorate will re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay, sworn on December 16, 1986. In paragraph 5 of the affidavit it is claimed that the term 'alcohol' derives from 'al' and 'kohl' which are two Arabic words, and when unqualified becomes specific for ethyl alcohol. It is further claimed that ethyl alcohol is well known as a constituent of alcoholic beverages. Shri Ranganathan stated that alcohols other than ethyl alcohol may be injurious to health like methanol propenol and other higher alcohols not dilutable with water. Ethyl alcohol, according to Shri Ranganathan, has a structure CH3 CH2 OH and ethyl alcohol is a primary alcohol and contains only one alcoholic or OH group. The deponent further stated that the expression 'alcohol' given in the relevant technical books is used to refer to ethyl alcohol of all sorts. Reference is then made to a book by Riedel-de-Heren by name 'Laboratory Chemicals 1984', and it is claimed that this publication has the merit of combining technical understanding as well as the trade and commercial understanding for the products enumerated therein. Shri Ranganathan has given the properties of ethanol, glycolphenol and pentaerythritol, and after referring to certain publication, all of which were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a revision application which was initially filed before the Government of India under Section 131 of the Customs Act. The applicant before the Tribunal were manufacturers of amyl alcohol in their factory at Calcutta and had imported 68 drums of ISO amyl alcohol, which was charged to Customs duty, auxiliary duly plus countervailing duty under Tariff Item 68. The levy of countervailing duty was challenged on the ground that Clause (a) of Item 68 excludes 'alcohol all sorts'. The objection was over ruled by the Assistant Collector and the Collector in Appeal. The Tribunal held that Item 68 mentions 'alcohol all sorts' including alcoholic liquors for human consumption and it is clear that all types of alcohol, the chemical description of which is certain, are excluded from the purview of Item 68 and therefore do not attract countervailing duty. The Tribunal felt that importance must be given to the fact that definition of alcohol given in Items 14(e) and 14(f) of the Central Excise Tariff has not been made applicable to Item 68. In view of these findings the Tribunal accepted the objection raised by the importer. The Department did not challenge the correctness of the decision and it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above the principal reliance was on the affidavit sworn by Shri Ranganathan and I must confess that in my judgment the affidavit does not support the claim made by Shri Sethna. 6. Apart from the affidavit of Shri Ranganathan, reliance was placed on the affidavit of Shri Ranbir Singh, Appraising Officer in 'C' Group, Bombay Customs and sworn on December 16, 1986. The deponent claims in paragraph 3 of this affidavit that on November 8, 1986 at about 6.30 P.M. the deponent visited M/s. Good Luck Wine Stores situated at Crawford Market, Bombay and the deponent asked the proprietor of the wine shop as to whether pentaerythritol, which is the item imported by the petitioner was available in wine shop. The deponent claims that the proprietor was surprised at the demand and conveyed that his shop deals only with alcoholic products like whisky, brandy, gin, rum etc. Reliance is placed on the affidavit of Shri Singh to urge that the product imported by the petitioner is not known as alcohol in the trade circle. It is difficult to appreciate how such a submission can be advanced on the basis of the affidavit of Ranbir Singh. The deponent has put it very mildly by stating that the proprieto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulk Drug Committee. The certificates recites that according to the best knowledge of Dr. Nair in the alcohol-based industry and trades only ethyl alcohol is known and referred to as alcohol and other items like glycol, ethyline, glycol, propylene Glycol etc. even though chemically referred to as alcohol, because of the OH group in the chemical structure, in commercial parlance only ethyl alcohol is known as alcohol. Shri Sethna submits that Dr. Nair's certificate is more than enough to conclude that in trade circles only ethyl alcohol is known as alcohol. The submission is entirely devoid of merit. In the first instance I am not prepared to place any reliance on the certificate issued by Dr. Nair in November 1986, when the petition was on Board for hearing. Secondly, the certificates are diametrically contrary to the decision recorded by the Assistant Collector, Central Excise, Thane on November 29, 1984 in the case of M/s. National Organic Chemicals Industries Ltd., copy of which is annexed as Exhibit 'G' to the petition, wherein it was held that the products viz. (1) dicetone alcohol (also known as DAA Diacetone), (2) ethyl hexyl alcohol (also known as 2 EHA 2 Ethyl Hexanol and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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