BAKUL CASHEW COMPANY Vs. OFFICER OF CUSTOMS QUILON

JUDGEMENT

(1.) The petitioner is a partnership firm carrying on the business of importing cashewnuts and exporting cashew kernels. In respect of two consignments of cashewnuts imported by them in 1972, they paid a sum of Rs. 11,491/- to the Customs authorities, Cochin as regulatory duty. The petitions did not know at that time that, as per notification No. 16 dated 20-4-1972 issued by the Government of India under S.25 of the Customs Act, 1962 read with sub-s.(4) of S.4 of the Finance Act, 1971 (Act 14 of 1971) cashewnuts were exempted from regulatory duty. It was only when the petitioner came to know of the notification did they realise that the amount was unnecessarily paid. It may be mentioned here that complete exemption from regulatory duty is granted under the said notification only if certain conditions mentioned therein are also satisfied. According to the petitioner, these conditions had been fully satisfied.

(2.) The petitioner made an application to the Assistant Collector of Customs and Central Excise, (the 2nd respondent) for a refund of the amount mistakenly paid by them. The Assistant Collector rejected the request for refund by Ext. P1 dated 30-4-1973 for two reasons. In the first place be stated that the claim for refund made after six months from the date of payment of duty was barred by limitation under S.27 of the Customs Act, 1962. In the second place the conditions upon which the goods were exempted under S.25(1) of the Customs Act had not been satisfied. Aggrieved by this order the petitioner filed an appeal before the Appellate Collector of Customs (the 3rd respondent). That appeal was dismissed by Ext. P2 dated 20-10-1973 on the ground that it was time-barred. The petitioner took up the matter in revision before the Central Government (the 4th respondent), but without success. It held by Ext. P3 dated 29-3-1974 that the application for refund was time barred under S.27(1) .

(3.) It is against these three orders that the petitioner has approached this Court under Art.226 of the Constitution. Shri M. Rama Chandran, counsel for the petitioner very ably and almost persuasively contended before me that claim for refund was not attracted by the limitation mentioned under S.27. According to him there was no order of assessment pursuant to which the amount was paid. No assessment under S.17 or S.18 of the Customs Act had been made by any officer of Customs. Consequently any claim for refund of the amount paid by mistake, could not be treated as a claim for refund of duty paid in pursuance of an order of assessment. He further contended that the goods being exempt from regulatory duty, the amount paid in respect of such goods was not paid towards or by way of duty. These contentions appear to be attractive at first sight, but upon careful consideration I am unable to accept them. I shall read the relevant provisions of S.27.