HARYANA PLYWOOD INDUSTRIES Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The writ petitioner No. 1, M/s. Haryana Plywood Industries, is a partnership firm engaged in the manufacturing of Jawala Ply, Jawala Boards and Jawala. The writ petitioner No. 2 is its partner and writ petitioner No. 3 is the agent of the writ petitioner No. 1.

(2.) The writ petitioners imported 62 crates of wood (rough packed but not further prepared) falling under Central Excise Tariff Item Nos. 4408.92 read with Notification Nos. 62/85 dated 17th of March, 1985 and 311/86 dated 13th of May, 1986 attracting basic Customs Duty at 10% ad valorem. The consigned goods arrived at Calcutta Port on 3rd of October, 1986 from Singapore by a vessel. The Notification Nos. 439/87-Cus. and 440/86-Cus., which had the effect of enhancing the Customs duty and auxiliary duty to 60% of ad valorem and 40% of ad valorem respectively, were issued on 6th of October, 1986. The writ petitioners filed a Bill of Entry on 8th of October, 1986 and the assessment was made on the basis of the enhanced rates by implementing the above notifications issued on 6th of October, 1986 instead of making such assessment at 10% ad valorem on the basis of the Notification Nos. 62/85 and 311/86. The writ petitioners filed a refund application seeking refund of Rs. 3,62,398.39 being the excess duty paid under protest. The Assistant Collector of Customs rejected the refund application of the writ petitioners and on appeal, the Collector of Customs (Appeals) set aside the said order of the Assistant Collector of Customs and remanded the case back to him for re-hearing. Again the Assistant Collector of Customs rejected the claim holding that the writ petitioner must obtain an order of assessment from the group concerned and file a claim before the Collector of Customs (Appeals). Before the Collector of Customs (Appeals) the writ petitioners produced a letter dated 18th of August, 1988 from Government of India, Department of Publication, Book Department, to show that they had received the concerned notification for publication on 29th of January, 1987 and put for sale on the same date. The Collector of Customs (Appeals) however, held that the rate of duty must be the rate which was prevailing on the date of presentation of the Bill of Entry i.e. on 8th of August, 1986, in terms of the provisions contained in Section 15(a) of the Customs Act, 1968 (hereinafter referred to as the Act).

(3.) Feeling aggrieved by the order of the Collector of Customs (Appeals), the writ petitioners preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi. By a judgment and order dated 28th of July, 1992, the aforesaid Appellate Tribunal allowed the appeal filed by the writ petitioners and directed that the excess duty paid in respect of the Bill of Entry in question must be refunded to the writ petitioners. A direction for expeditious refund of the said amount was also made. Although such an order of refund was made by the Appellate Tribunal, the refund was, however, not made by the authorities. For refund of the aforesaid amount in terms of the order of the Appellate Tribunal, the writ petitioners made an application before the authorities but the Customs Authorities had refused compliance of the said order of the Appellate Tribunal. Accordingly, the writ petitioners have come up to this Court for a direction upon the Customs authorities to forthwith refund the excess amount of Rs. 3,62,398.39 which was realised in excess of the import duty payable by the writ petitioners with interest at the rate of 24%.