PATEL INDIA PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner herein is private limited company having its office at Homby Road, Bombay. It is the sole distributing agent in India of the products of Messrs Sawyer's Inc. Portland, U. S. A. During the years 1954 to 1956, it imported into India 35 consignments of view master stereoscopes, reels, etc. In the past also it was importing thsse articles. Prior to 1954 import duties were being levied on those articles on the basis of the price entered in the invoices. The consignments that came to India between the years 1954 to 1956 are detailed in Annexure D when items I and 2 (shown in Annexure D) were imported. Ignoring the past practice, the customs authorities did not accept the invoice price as the real value under section 30(b) of the Sea Customs Act, 1878, to be hereinafter referred to as the Act. The petitioner paid the duty levied under protest and then took the matter in appeal. In the appeal it was unsuccessful. Ultimately, it approached the Government in revision. e Government by its order dated March 20, 1957, accepted the revision petition and directed refund of the excess import duties collected. Following this order of the Government, the customs authorities refunded the excess import duties collected from the petitioner during the pendency of the aforementioned proceedings in respect of consignments 1, 2, 22 to 29 and 33 to 35 (shown in Annexure D), in respect of which the petitioner had filed refund applications within three months from the date it paid the duty levied. Bat the petitioner's claim for refund in rsspect of the other consignments was rejected on the sole ground that the same was barred by section 40 of the Act as he had not claimed refund within the time prescribed. The appellate authority as well as the revisional authority have affirmed the order of the Assistant Collector. Hence, the petitioner has moved this Court under Article 226 of the Constitution to quash the orders of the authorities concerned and direct them to refund the excess duty collected from it or, in the alternative, to direct them to re-assess the consignments in question according to law.

(2.) Both the petitioner as well a? the authorities under the Act have proceeded on the basis that the refund claimed is one under section 40. The first question that falls for decision is whether section 40 is applicable to the facts of the present case. The marginal note to that section reads :-

(3.) The above conclusion of mine is not sufficient to grant the relief prayed for by the petitioner. The impugned assesments were made several years before this writ tetition was filed. If the petitioner was aggrieved by those assesments, it should have gone up in appeal under section 188 of the Act. That was the proper remedy a remedy provided under the Act itself. Therefore, the petitioner has no legal right to compel the Government to relund the excess duty collected from it. Technically speaking, the Government will be within its rights in witoholding the excees collection made. But I do not think that it would be proper for the Government to do so. It is not-at any rate it should not be-interested in making illegal exactions. Therefore, it has a moral duty to return the excess duty collected from an assessee. As observed byChagla,C.J. in.Firm, Kaluram Sitarm v. The Dominion of lndiaa. that the State deals with a citizen, it should not ordinarily rely on technicalities, and if the State is satisfied that the case of the citizen is ajust one, even though legal defences may be open to it, it must act * * * as an honest person."