VIJAY KUMAR BHATIA HUF Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petitioners imported cloves from Columbo, Ceylon in March, 1983 and filed Bs/e. It is the case of the petitioners that cloves are covered by Chapter 9 of the Customs Tariff Act, 1975 and are subject to duty under Heading 9. 04/10 at a rate of Rs. 60/- per Kg. and it is standard rate of duty. By Notification No. 431/cus dated 1st November, 1976, as amended, the 1st Respondent exempted, inter alia, cloves, when imported into India from Bangladesh or the Republic of Korea or Sri Lanka, from that portion of the duty of customs specified in the First Schedule as was in excess of the rate specified in the corresponding entry in column 4 of the said table. Therefore, according to the petitioners the rate of duty of Customs was calculated at the rate of Rs. 20/- per Kg. less 7. 1/2%. The petitioners paid accordingly. But doubt was raised by some importers relating to interpretation of the words "rs. 20/- per kg. less 7. 5%" as to whether the 7. 5% was to be treated as 7. 5% of Rs. 20/- or 7. 5% of ad valorem i. e. of the assessable value, CEGAT in CD Appeal No. 463/1985 (D) - (The Collector of Customs, Madras v. M/s. Cortland Exports, Madras) held on 30. 9. 1985, that preferential rate of duty on cloves in terms of Notification No. 431/cus. dated 1. 11. 1976 was Rs. 20/- per Kg. less 7. 5% ad valorem was the correct view. Petitioners came to know about this and they filed application before the Respondent No. 3 on 6th June, 1987 for refund of Rs. 7721. 62/- ps. as the amounts were collected by Respondent in excess and unlawfully. But application was not decided and hence this petition was filed on 28th November, 1987.

(2.) THE petitioners submit that the limitation prescribed by the Customs Act will not apply where the duty has been paid under a mistake of law or the duty has been recovered without the authority of law. This is disputed by ld. Counsel for Respondents who contended that the refund applications were barred by time as they were filed beyond 6 months in view of Section 27 of Customs Act, 1962.

(3.) IT is not possible to accept the contention of ld. Advocate for petitioners. The Division Bench of this Court in Writ Petition No. 1656/87 and others decided on 6th/7th March, 1996 (Pfizer Ltd. and Ors.) [1996 (65) ECR 155 (Bom.)] considered the question whether refund of excise duty paid because of erroneous interpretation of Tariff Item or exemption Notification or ignorance of such Notification, despite the fact that such applications were filed before the authority beyond the prescribed period of six months as provided under Section 11-B of the Central Excises and Salt Act, 1944 can be granted or not. It was held that it cannot be granted, since 20th September, 1991 in view of amending Act 40 of 1991, Section 27 of Customs Act is pari materia same as Section 11-B of the Central Excises and Salt Act, 1944.