(1.) The petitioner is a sole proprietor of the firm Mona Enterprises and imports various types of alcohols. In August 1984 the petitioner imported a consignment of Pentaerithericol and on import bills of entry were filed declaring the imported goods to fall under Customs Tariff Item 29, 29.01/45, and for the purpose of countervailing/additional duty under Tariff Item No. 68. The tariff rate of customs duty prescribed is 70% in addition to the 40% Auxiliary duty plus 10% additional duty. The bills of entry were duly passed and the petitioner paid duty on November 24, 1984. The petitioner claims that subsequently he became aware that as the goods imported were alcohol, the countervailing/additional duty was not payable in accordance with Tariff Item 68(a). The petitioner accordingly filed a refund application on August 5, 1986 seeking refund of an amount of Rs. 15,688.94. By order dated September 26, 1986 the Assistant Collector of Customs, Refund Department, rejected the claim on the ground that the same is barred by limitation under Section 27(1) of the Customs Act. The order passed by the Assistant Collector has given rise to filing of this petition on October 22, 1986 under Article 226 of the Constitution of India. The relief sought by the petitioner is a declaration that Section 27 of the Customs Act, 1962 is unconstitutional, illegal, null and void and for getting aside the order passed by the Assistant Collector and for refund of the duty along with interest at the rate of 18% per annum.
(2.) Shri Kantawala, learned counsel appearing on behalf of the petitioner, did not advance any submission in respect of prayer for declaration that Section 27 of the Customs Act is unconstitutional. The learned counsel restricted his submissions to the claim that the impugned order of the Assistant Collector is contrary to law and the petitioner is entitled to seek refund of the amount claimed. It was urged by the learned counsel that additional duty at the rate of 10% ad valorem was charged under Section 3 of the Customs Tariff Act and the said recovery was clearly illegal as the goods imported are not chargeable to duty, being under ambit of Tariff Item 68. The learned counsel further urged that the Customs Excise and Gold (Control) Appellate Tribunal held on April 19, 1983 that Tariff Item 68 refers to 'alcohol all sorts' and all types of alcohol, the chemical description of which is clear, are excluded from the purview of Item 68, and therefore, do not attract countervailing duty on import. Shri Kantawala submitted that the decision recorded by the Tribunal was not only not challenged by the Department but was specifically accepted and that fact is reflected in the copy of the Circular dated October 1, 1984 issued by the Central Board of Excise and Customs, New Delhi. The learned counsel also contended that the Assistant Collector committed an error in holding that the refund claim was barred by limitation under Section 27(1) of the Customs Act when the duty was recovered and paid by the petitioner under mistake of law. Shri Kantwala highlighted the fact that the Assistant Collector has passed refund orders in respect of identical item imported by the petitioner in a case where the claim was not turned down on the ground of limitation. Shri Sethna, learned counsel appearing on behalf of the Department, resisted the relief sought by contending that the petitioner has efficacious alternate remedy of filing an appeal against the order of the Assistant Collector, and therefore, the Writ Petition should not be entertained. Shri Sethna also contended that the finding of the Assistant Collector that the refund claim is barred by limitation is correct and in any event even assuming that the petitioner can claim that the duty was paid under mistake of law, and therefore, the writ petition could be filed within three years from the date of knowledge of the mistake, still the present petition should not be entertained as the petitioner has not explained the delay in filing the petition after being aware of the mistake. Shri Sethna further contended that whatever might have been decided by the Tribunal and whatever decision might have been taken by the Central Board of Excise by issuing circular, the correct position about the ambit of Tariff Item No. 68(a) is that it restricts itself only to Ethyl Alcohol and not 'alcohol all sorts'. It was further submitted that as the imported item is not Ethyl Alcohol, the exclusion claimed under Tariff Item 68(a) is not available. The learned counsel finally submitted that even if the Central Excise duty is not payable, additional duty of customs can still be levied.
(3.) Before examining the claim of the petitioner on merits, it is necessary to deal with the preliminary objection of Shri Sethna that the petition should not be entertained as the petitioner has alternate efficacious remedy. It was urged that the impugned order passed by the Assistant Collector is appellable and therefore the writ petition should not be entertained. The submission has no merit on the facts and circumstances of the case. The refund application has been rejected on the ground that it was filed six months from the date of payment of duty, and therefore, cannot be entertained under Section 27(1) of the Customs Act. It is now well settled that the Customs authorities while determining the refund application are regulated by the provisions of the Customs Act, but in case the duty is paid by the importer under mistake of law, then the period of limitation set out under Section 27(1) of the Act would not be attracted. In these circumstances no worthwhile purpose would be served by driving the petitioner to file an appeal before the Collector. Shri Sethna urged that the question as to whether the item imported by the petitioner is 'alcohol' or 'organic chemical compound and therefore not an alcohol' and would not attract tariff Item 68(a) requires to be determined on the material that would be led by the Department, and therefore, the question must be left for determination of the Appellate Authority. I inquired from Shri Sethna as to whether the Department desires to produce any material in addition to the affidavits filed in the present petition, and Shri Sethna very fairly stated that there is no other material available. The present petition is lodged on October 8, 1986 and was exhaustively argued before me for a considerable period. In these circumstances no valid purpose would be served by driving the petitioner to appellate authority, because such procedure would lead to multiplicity of litigation. Accordingly, the preliminary objection of Shri Sethna is rejected.