INDIAN CABLE COMPANY LTD Vs. CEGAT

JUDGEMENT

(1.) This application under Article 226 of the Constitution is for a declaration that the purported assessment of the imported cable impregnating compound non-draining N.D. 359 and N.D. 304 under Tariff Item No. 38.01/19(1) of the Customs Tariff Act, 1975 has been made wholly without jurisdiction and contrary to the Customs Act, 1962 and that the excess duty realised is without authority of law. The petitioner has further prayed for a declaration that the said cable impregnatic compound containing more than 70% by weight of petroleum mineral oil was assessable under Tariff Item No. 27.10(1) of the Customs Tariff Act, 1975 and the respondents in the circumstances are bound to refund the excess amount wrongly realised under Item No. 38.01/19(1) of the Customs Tariff Act, 1975. The petitioner has also asked for a writ of or in the nature of mandamus commanding the respondents to withdraw, recall, rescind or cancel the impugned orders including the order dated February 28,1983 and to forthwith refund to the petitioner the sum of Rs. 4,40,006.19 with interest thereon @ 12% per annum, being the excess duty realised by the respondents. The petitioner has also asked for consequential direction for refund to the respondents, of the sum of Rs. 4,40,006.19.

(2.) Mr. N.C. Roy Chowdhury, appearing for the petitioner, has drawn my attention to an unreported Judgment of this Court. delivered by Monoranjan Mallick, J. on May 30,1989 in Matter No. 91 of 1984 since "The Indian Cable Co. Ltd. v. Customs, Excise & Gold (Control) Appellate Tribunal and Ors." From the said judgment, it appears that similar point as has been in the instant writ petition has been considered. The facts in the instant case are almost similar to the facts in the said writ petition in Matter No. 91 of 1984. This Court, following the decision of the Supreme Court in the case of Salonah Tea Co. Ltd. v. Superintendent of Taxes, Nowgong & Ors., allowed the application of the petitioner in the said writ proceedings and made the rule absolute. It has been held in the said writ proceedings that the excess amount as realised, was without authority of law and on the basis of the principle laid down in Salonah Tea Co. Ltd. (supra), the Court can direct refund of the excess amount paid by invoking jurisdiction under Article 226 of the Constitution.

(3.) Agreeing with the Judgment delivered in the said writ proceedings in Matter No. 91 of 1984 "The Indian Cable Co. Ltd. v. Customs, Excise & Gold (Control) Appellate Tribunal & Others" I allow the instant writ petition and make the rule issued herein absolute in terms of prayers (a), (b), (c) and (d) of the writ petition. The respondents shall refund the said sum of Rs. 4,40,006.19 with interest thereon @ 12% per annum to the petitioner, within a period of two months after Christmas Vacation of this Court. In the facts of the case, there will be no order as to cotsts. There will be a stay of operation of this Judgment and Order for a period till January 11,1991. All parties shall act on a signed copy of the minutes of the operative part of this Judgment and Order upon usual undertaking.