UNION OF INDIA Vs. MINE-CHEM INDIA

JUDGEMENT

(1.) THIS appeal discloses fraud committed both on the Customs Department and on this Court and we propose to direct the Commissioner of Police to investigate the matter and prosecute every person connected with this fraud irrespective of the position held. The facts set out hereinafter would disclose the nature and extent of fraud to make wrongful gain.

(2.) ON January 18, 1987 Writ Petition No. 173 of 1987 is filed in the name of M/s. Mine Chem (India) a partnership firm having office at 308, Admaji Building Syed Mukri Street, Bombay 400 009 on the Original Side of this Court by M/s. Kantawala and Co. , a firm of attorney. The petition is drawn by Dr. Nitin Kantawala. The petitioners claim that petitioners are a partnership firm and imported sorbitol solution in two consignments. The petitioners claim that the benefit of duty exemption of countervailing/additional duty as per Notification bearing No. 55/75 dated March 1, 1975 was available in respect of duty payable in importing the said consignments. The petitioners then stated that the Customs Authorities charged countervailing/additional duty at the rates as disclosed by the endorsement made on bill of entry, the copy of which was annexed as exh. 'e' to the petition. The petitioners claim that the judgment was delivered in Writ Petition no. 1808 of 1982 by Mr. Justice Pendse holding that the benefit of duty exemption is available. The petitioners came to know about the said decision and became aware that the import of sorbitol is exempt from payment of countervailing/additional duty. The petitioners claim that the application for refund was filed and the copy of the refund application was annexed as Exhibit 'i' to the petition. The refund application was turned down by the Assistant Collector of Customs and thereupon the petitioners instituted the petition seeking writ of mandamus for setting aside the order refusing to grant refund and directing the Customs Department to refund the amount of countervailing/additional duty on the consignment of sorbitol covered by bills of entry, the copies of which are Exhibits 'e' and 'f' to the petition.

(3.) THE petition was posted before Mr. Justice Jahagirdar on January 23, 1987 and the parties tendered minutes of the order and the learned Judge passed order disposing of the petition in terms of the minutes. By this order the Customs Department was directed to refund to the petitioners the refund amount due as per particulars given under Exhibit 'e' to the petition by 15th February 1987. The petitioners through their advocate Dr. Nitin Kantawala gave an undertaking to this Court that in the event of this Court allowing the appeal to be filed by Union of India and if the matter was not carried further, then the petitioners would repay the amount. Union of India and Collector of Customs filed the present appeal on August 18, 1987 and the appeal was admitted by Division Bench on April 15, 1988. Dr. Kantawala appeared on behalf of the respondents, and waived service of appeal.