UNION OF INDIA Vs. MANSUKHLAL CHHAGANLAL DESAI

JUDGEMENT

(1.) Shri Master, learned Counsel for the appellants stated at the outset that the controversy in this appeal, on merits, stands concluded by decision of the Supreme Court Collector of Customs V/s. K. Mohan and Co. Exports. In view of the decision of the Supreme Court, the appeal must fail.

(2.) Shri Master submitted that the claim filed by the petitioners was not genuine. The learned Counsel urged that the petitioners claimed in the writ petition that consignment was purchased on high sea sale basis from M/s. Bhavani Textiles, a partnership firm and in support of the claim, reliance was placed on a letter written by M/s. Bhavani Textiles and signed by a partner. Shri Master submitted that this claim is incorrect and in support of the submissions, relied upon the affidavit of Jagdish Chander, Assistant Collector of (Legal) Customs, sworn on June 7, 1988. In paragraph 2 of the affidavit, it is claimed that on December 8, 1987, investigation was conducted on getting intelligence information and thereafter the statement of K.J. Sanghvi, constituted attorney of M/s. Bhavani Textiles was recorded under Section 108 of the Customs Act. The affidavit claims that Sanghvi stated that the letter relied upon by the petitioners, as duly signed by the partner of M/s. Bhavani Textiles, is not genuine because the signature is not of any of the partner of M/s Bhavani Textiles. In answer to the notice of motion taken out by the appellants in appeal, Mansukhlal Chhaganlal Desai filed affidavit in reply and in paragraph 4, denied that the relief was based on fraudulent claim. Desai pointed out that the statement made by constituted attorney is entirely false and seems to have been made without any enquiry from the partners. Shri Master invited our attention to the copy of affidavit annexed to the affidavit of Desai. The copy of affidavit shows that it is sworn by Ramesh Jayantilal Sanghavi, a partner of M/s Bhavani Textiles and the partner has claimed that the constituted attorney did not know what was done by the partners. From this material, Shri Master desires to claim that the petitioners were not entitled to the relief. We are unable to find any merit in this submission. It is not open for this Court sitting in appeal against order directing refund to enquire as to whether the petitioners were entitled to make the claim on high sea sale basis. We are not prepared to accept the statement of the constituted attorney recorded under Section 108 of the Customs Act as gospel truth. In our judgment, this is not a forum before which such contention can be raised for the first time. The statement under Section 108 of the Customs Act was recorded only after the earned trial Judge passed an order directing refund to the petitioners. It is not in dispute that Bhavani Textiles never filed any claim for refund.

(3.) Accordingly, appeal fails and is dismissed with costs. The respondents are at liberty to withdraw the amount deposited with the Prothonotary and Senior Master. Shri Master applies for stay of the order permitting withdrawal. Stay refused.