MARITIME SERVICES PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) IT is unfortunate that the petitioners have to file this petition under Article 226 of the constitution of India for directing the respondents to refund the amount which the Collector of customs ordered to be paid to the petitioners on November 20, 1985. The petitioners are the shipping agents of foreign shipping company and the Collector of Customs commenced proceedings under Section 116 of the Customs Act in respect of short landing of certain goods. In these proceedings a penalty of Rs. 3,93,777/- was imposed on the petitioners in exercise of powers conferred under Section 116 of the Customs Act. The petitioners carried revision against the said order before the Government of India and the order was set aside and proceedings were remitted back to the Collector for fresh disposal.

(2.) THE Collector passed a fresh order on November 29, 1985 holding that the petitioners are not liable for any penalty and the amount of Rs. 3,97,777/- recovered from the petitioners should be refunded. Subsequently out of this amount some amount was adjusted in respect of some other liability of the petitioners, with the result that the petitioners were entitled to the refund of Rs. 3,26,477/ -. The petitioners repeatedly approached the Collector for refund of this amount, but failed to receive any positive response from the Collector and ultimately filed the present petition in this Court on January 19, 1988. The petition was admitted on March 29, 1988 and at the stage of admission the learned single Judge directed the respondents to deposit sum of Rs. 3,25,000/-within six weeks in this Court. The petitioners were granted liberty to withdraw this amount on furnishing bank guarantee. The petitioners withdrew this amount on November 22, 1988 on furnishing bank guarantee. By subsequent order the bank guarantee was disposed with.

(3.) SHRI Ghandy, learned Counsel appearing on behalf of the petitioners, Submitted that there is no reason whatsoever for the Collector not to refund the amount from November 29, 1985. The learned counsel urged that though the petitioners have received Rs. 3,25,000/-, the balance amount of Rs. 1,477/- is not yet paid and the respondents should be directed to pay interest on the entire amount from November 29, 1985 onwards. The submission is correct and deserves acceptance. The respondents without any authority and without any rationale withheld the amount repayable to the petitioners and thereby earned advantage and therefore are bound to refund the amount along with interest. Shri Shah, learned Assistant Government Pleader, submitted that the amount was not repaid because against the order of Collector proceedings were taken the Government of India. It is impossible to entertain this submission for more than one reason. In the first instance the contention is raised without filing any affidavit and it is not possible to examine oral submission. The respondents did not care to file any affidavit before the learned single Judge at the stage of admission, nor did they file any thereafter even though the petition was admitted two years back. Shri Shah has no explanation why the return is not filed. Shri Ghandy points out that the petitioners have received no intimation from the Government of India of any proceedings, but on the other hand in the year 1988 the Assistant Collector passed order directing that the refund should be made and that fact conclusively establishes that there could be no proceedings pending before the Government of India in the year 1988. In my judgment, the claim of Shri Shah is without any foundation and cannot be entertained.