DEVPAL DHIR Vs. B V KUMAR AND ANOTHER

JUDGEMENT

(1.) This is an appeal preferred against the judgment dated September 20, 1982 delivered by Mr. Justice Bharucha dismissing Writ Petition filed by the appellant seeking a writ of mandamus for quashing and setting aside the order dated February 26, 1979 passed by the Collector of Customs (Appeals) Bombay, declining to grant refund to the appellant. Few facts which are not in dispute and which gave rise to the filing of the petition under Article 226 of the Constitution of India are as follows :

(2.) The appellant imported three consignments of Australian Greecy Wool by s.s. Staraat Lagos'. The vessel entered Indian territorial waters on June 10, 1977 and the appellant presented bills of entry to the Customs authorities on June 13, 1977. The import general manifest was filed by the Agent of ship owners on June 16, 1977. The Customs duty payable upon the imported goods was at the rate of 45% ad valorem on the date when the ship entered the territorial waters. The rate was increased on 75% ad valorem at mid-night of June 17 and 18, 1977. Though import general manifest was filed on June 16, 1977 as contemplated under Section 30(1) of the Customs Act, 1962, entry inwards was granted to the vessel by the Customs authorities under Section 31(1) of the Customs Act only on June 20, 1977. Even before the grant of entry inward, the Customs Officer had assessed the duty on the basis of bills of entries filed by the appellant and passed an order levying duty at the rate of 45% ad valorem on June 15, 1977. The Customs Officer revised the duty on June 23, 1977 to the rate of 75% ad valorem .

(3.) The appellant paid extra duty as demanded by the Customs authorities and cleared the imported goods. The appellant thereafter filed refund applications for a sum of Rs. 2,74,877.40 on December 6, 1977. The appellant claimed that the imported goods were liable to duty as was prevalent on the date the imported goods crossed Indian territorial waters. The claim was rejected by the Assistant Collector by order dated March 6, 1978 and the appeal preferred by the appellant before the Collector also ended in dismissal by order dated February 26, 1979. The appellant authority took the view that the assessment is complete when the duty is assessed and realised. The appellant thereupon preferred Miscellaneous Petition No. 1042 of 1979 in this Court under Article 226 of the Constitution of India and the learned Single Judge by the impugned judgment dismissed it holding that the Customs authorities could not have completed the assessment prior to the date of grant of entry inward and, therefore, the endorsements made on the bills of entries on June 15, 1977 are of no consequence. The learned Judge also felt that the appellant cannot secure relief under Article 226 of the Constitution as the justice was not on the side of the appellant. The judgment of the learned Single Judge is under challenge.