TMI Blog1989 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... s and its registered office at 9, Hare Street, Calcutta. The petitioner No. 1 carries on the business for manufacturing various kinds of electrical cables and for the said purpose has to import, inter alia, cable impregnating compound. The said imported cable impregnating compound contains more than 70% of weight of Petroleum Mineral Oil. On 15th June, 1978 the petitioner imported 20 metric tonnes cable impregnating non-drawing compound No. ND-354 from M/s. Dussek Brothers Ltd. London under Bill of Entry No. D/1-558 dated 15th June, 1978 on board the vessel S.S. PINDAROS. The said imported materials contained more than 70% of Petroleum Mineral Oil and was meant for actual use in industrial consumption in the manufacture of cable in the factory of the petitioner No. 1 at Jamshedpur. The petitioners duly submitted all relevant documents including the technical datas supplied by the foreign manufacturer as well as the test certificate and the relevant catalogue and literature to the Custom's Appraiser along with the Bill of Entry for the purpose of assessment of import duty to be levied under the law in respect of the said imported materials which clearly stated that the said materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in refusing the application for refund as the same was filed long after the expiry of the period of six months of the payment of the duties. It is also urged that the Assistant Collector of Customs, the Appellate Collector of Customs and the Customs, Excise Gold (Control) Appellate Tribunal were justified in refusing the claim of refund as it was barred by the limitation provided in Section 27(1) of the Customs Act, 1962. My attention has been drawn to the judgment of the Tribunal dated 29.8.85 in which the Tribunal relied on the Supreme Court decision in Miles India Ltd. v. The Assistant Collector of Customs, reported in 1987 (30) E.L.T. 641 (SC) = 1985 ECR 289 where it has been held that the quasi-judicial authorities functioning under the Customs Act as well as the Tribunal are bound to apply the said time limit and cannot ignore it and resort to the general law of limitation. 7. It is, therefore, urged that the writ petitioner cannot urge before this Court that the orders by the Customs Authorities and the Tribunal are illegal and arbitrary. 8. It is also submitted that when the petitioner did not apply for refund within the period of six months from the date of the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not go beyond the statute of limitation provided in the Customs Act, yet, when the writ petitioner has clearly established that the Customs have illegally assessed the duty under Heading No. 38.01(19)(1) of the Schedule of the Customs Tariff Act when required to be assessed under Heading 27(10) of the Customs Tariff Act and when the Customs Authorities for the subsequent periods assessed the Customs duty under Heading 27(10) of the Customs Tariff and even in a case of payment of duty under the Heading 38.01(19)(1) of the Schedule to the Customs Tariff Act under protest the Customs Authorities granted the petitioner refund, then it has been clearly established that the goods in question was assessable to the customs duty under Heading 27(10), that the Customs Authorities realised the excise duty without properly verifying the documents of the petitioner, that the imported goods contain petroleum oils not less than 70% by weight and the petitioner also paid the said duty as demanded by the Customs under the bona fide belief that the duty was assessed properly and that when the petitioner discovered the mistake and applied for refund then the writ court is quite competent to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of Customs, Bombay sent a sample of Cable Impregnating Compound 59 to the University of Bombay, Department of Chemical Technology and the Department of Chemical Technology submitted result of such tests to the Assistant Collector of Customs Bombay reporting that the petroleum oil contained in the goods was by weight 72.4%. The petitioner has also alleged that he also obtained report in respect of similar materials from Jadavpur University for the purpose of submitting the same for the Customs Authority, Calcutta and the report was obtained dt. 26th July, 1978 which certified that the sample of ND 359 was found to contain Petroleum 76% weight. The copy of the report is marked Annexure 'B'. 15. The petitioners have also alleged that in 1981 the Calcutta Customs also assessed the customs duty for this product under Heading 27.10. 16. From the above discussions, it is clear that after the payment of the duty in this case, on 15th June, 1978 the petitioner were satisfied from receiving the reports both from the Jadavpur University as well the report submitted to the Assistant Collector of Customs, Bombay by the Department of Chemical Technology of the University of Bombay that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising the writ jurisdiction. The Supreme Court has further observed that the High Court shall exercise power under Article 226 of the Constitution to direct the refund when the refund is claimed as a consequential relief after striking down the order of assessment unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such a nature for which there is no probable explanation and which will cause any injury either to respondent or to any third party. It has further been observed that in some cases the period of three years is normally taken as a period beyond which the court should not grant relief but that is not an inflexible rule and that it depends on the facts of each case. In that decision the High Court quashed the assessment but did not direct the order of refund of the tax paid on such assessment. The Supreme Court setting aside the judgment of Gauhati High Court directed that on setting aside the assessment the High Court under Article 226 of the Constitution should have directed the refund of the tax paid on such assessment. 18. In the above decision of Supreme Court all the previous decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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