TMI Blog1998 (10) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment principle'. The bank guarantee, if any, furnished in W.P. 272/90 shall stand discharged. - 1103 of 1989 - - - Dated:- 28-10-1998 - K. Venkataswami and S. Rajendra Babu, JJ. [Judgment per : K. Venkataswami, J.]. - In all these writ petitions under Article 32 of the Constitution of India, the petitioners have challenged the constitutional validity of Notification No. 49/89-Customs, dated 1-3-1989. The said Notification was issued by exercising the powers under Section 25(1) of the Customs Act. Under the impugned Notification, the respondents have levied customs duty at 30% ad valorem on imported `glazed newsprint' which is used for the publication of news magazines. 2.In view of certain subsequent events, we are r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be applicable to the(d) goods imported by petitioners only." 4.In the light of the interim orders of this Court dated 12-12-1996 and in the light of affidavit filed on behalf of the respondents on 15-1-1998, the petitioner in W.P. 1103/89 has filed an affidavit, inter alia, stating as follows :- "I state that the contention of the Government of India that any refund would be governed by the provisions of Chapter V or otherwise under the Customs Act as at present is misconceived. It is submitted that the petitioner has challenged the constitutional validity of the said imposts at the immediate earliest. This Hon'ble Court after hearing the parties directed the Government of India to reconsider the above matter keeping in perspective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed the following order on 26-2-1998 after hearing the arguments of the Counsel appearing on both sides :- "W.P. (C) No. 1103/89. An affidavit of Anil Mehra has been filed on behalf of the petitioners in response to the proposal made on behalf of the Government of India in the affidavit of Ms. Ranjana Jha. Under Secretary, Ministry of Finance, Department of Revenue dated 14-1-1998 wherein it has been stated that the said petitioners are agreeable to the offer of the Government of India and seek refund of the 50% of the customs duty paid by them on the imports of glazed newsprint effected when the said notification was in full force and that the said acceptance is without prejudice to the contention of the petitioners that the said levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be filed on behalf of the respondents. Thereafter, this Court on 1-9-1990 passed the following order :- "Shri Bajpai, learned Counsel appearing for the Union of India states that the Union of India is not prepared to accept the offer made by the petitioners as recorded in the order dated 26-2-1998 regarding refund of 50% of the customs duty in view of the law laid down by this Court in Mafatlal Industries Ltd. v. U.O.I. [1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536]. Shri Bajpai also states that no counter affidavit is required to be filed on behalf of the U.O.I. since there is already an affidavit of Ms. Ranjana Jha dated 14-1-1998. He further states that the offer contained in the affidavit of Ms. Ranjana Jha dated 14-1-1998 is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioners, while adopting the argument of Mr. Salve, submitted that all the writ petitioners are entitled to get unconditionally refund of the excess customs duty in view of the affidavit filed on behalf of the respondents. 10.Mr. K.V. Mohan, learned Counsel appearing for the petitioner in W.P. 272/90, submitted that the petitioner in that case has furnished a bank guarantee so far as the customs duty over and above 15% for clearing the imported glazed newsprint. In the light of the affidavit filed on behalf of the respondents, the bank guarantee filed pursuant to the orders of this Court must be released. 11.Mr. Bajpai and Mr. A. Subba Rao, learned Counsel appearing for the respondents, submitted that even in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1989 to 24-1-1990 over and above 15% ad valorem in cases where customs duty on glazed newsprint was levied and collected over and above 15% without demanding any affidavit from the petitioners. In other words, clause (c) of the affidavit of Ms. Ranjana Jha will not be a condition precedent for refund of excess customs duty paid by the petitioners over and above 15% ad valorem for the period 1-3-1989 to 24-1-1990. 13.Now coming to the question of interest, we are not impressed by the argument of learned Senior Counsel Dr. Gauri Shankar. The matter of refund of excess amount paid in these matters arises out of a settlement between the parties. Therefore, the provisions of the Interest Act, 1978 or Section 27A of the Customs Act, 1962, rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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