HARRISONS AND CROSSFIELD LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) The suit out of which this appeal has arisen is for recovery of a sum of Rs. 3509-14-8 paid under protest by the plaintiff Company as customs duty for export of battens at the Land Entrance Chowkey, Quilon, during the period, July to November, 1946. According to the plaintiff, neither before July 1946, nor after November 1946, was any customs duty realised from it for export of battens which it had been regularly doing for years since 1943, as the duty was leviable only in respect of planks or logs not being manufactured goods like battens. Notice under S.80 of the Civil Procedure Code having been served claiming, in vain, refund of the amount, the plaintiff has instituted the suit to compel refund of the same. The defendant State by its written statement put the plaintiff to prove "that the several consignments in respect of which duty was paid by them under protest and refund is now claimed were exempt from duty," and also that the suit was barred by limitation. The District Judge found the plaintiff entitled to have the refund, but dismissed the suit without costs as barred by limitation. Hence the appeal by the plaintiff and cross objection by the State.

(2.) It was clearly averred in the plaint that the duty of which refund is claimed related to "non dutiable battens exported by plaintiff". There was no specific denial of this averment in the State's written statement. The only answer was that the plaintiff should prove that the duty collected from it related to non dutiable goods. The specification of the goods in respect of which the duty was levied as battens was not disputed in the written statement. As the averments in the plaint not specifically denied in the written statement have, under R.5 of O.8 CPC., to be taken as admitted, it must now be assumed that the duty collected was in respect of battens.

(3.) Under Art.72 of the Contract Act, 'a person to whom money has been paid by mistake or under coercion must repay or return it.' The evidence on record clearly shows that the plaintiff was under an obligation to deliver every month a large number of packing cases to its customers at Madurai and Tuticorin and in order to carry out the same without default it had to export from Quilon the required quantity of the finished shooks and battens therefor. As the Excise Authorities insisted on payment of customs duty before the goods were taken to the railway yard, plaintiff had to pay the duty demanded of it. It was a clear case of payment under coercion, for without complying with the orders of the Excise authority, it would have been impossible for the plaintiff to transport the goods to Madurai or Tuticorin. In The Sales Tax Officer Banares v. Kanhaiya Lal Makund Lal Saraf ( AIR 1959 SC 135 ) the Supreme Court has observed: