RISHI GASES PVT LTD Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) In this writ application the writ petitioner has come up to this Court for a direction upon the respondents and their servants and/or their agents to refund forthwith a sum of Rs. l,64,963.33p. with interest to the petitioner being the amount of duty, fine and penalty wrongfully collected from him and for other incidental reliefs. The writ petitioner filed a bill of entry for clearance of certain goods under cover of invoice No. 83/P.G.-45, dated May 18,1983 declaring the value totalling to 14,840 (GIF Calcutta). They also claimed that the goods were covered by O.G.L. as per Appendix No. 10, Serial No. 1 of ITC Policy AM '83 as components for manufacture of Air Separation Plant at their factory. The Collector who adjudicated the proceeding based upon the examination report of the Machinery Export Appraiser and report of M/s. A.G.A. Industrial Gases Ltd., U.K. observed that these goods were old, used and second hand and capital goods and import on such amount was not permissible. He determined the value at 21,750/- as against the declared value of 14,840 (GIF Calcutta). Accordingly, he ordered for confiscation of the goods but he gave an option to redeem the goods on payment of Rs. 75,000/- and also imposed a penalty of Rs. 10,000/-.

(2.) Being aggrieved by this order passed in the aforesaid adjudication proceeding the writ petitioner preferred an appeal before the Customs Excise Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as "CEGAT"). It may be placed on record that the writ petitioner had it's goods released on the basis of the Adjudicating Authority by payment of Rs. 75,000/- and also Rs. 10,000/- as penalty. The appeal of the writ petitioner was allowed by the CEGAT by a detailed judgment passed on September 16,1991. From the judgment of the CEGAT it appears that the order of the Adjudicating Authority was set aside and the appeal was allowed with consequential relief. After the Appellate order was passed the petitioner made an application on April 6,1992 before the Assistant Collector of Customs who is the respondent No. 2 in this writ application claiming refund of additional customs duty, fine and penalty totalling a sum of Rs. l,64,963.33p. paid by the writ petitioner on the said goods. Since the aforesaid amount was not refunded to the writ petitioner with statutory interest to be payable under Section 27A of the Customs Act the writ petitioner has come up to this Court for reliefs.

(3.) I have heard Mr. Dhar, Learned Advocate appearing on behalf of the writ petitioner and Mr. Sarkar, Learned Advocate appearing on behalf of the Customs Authorities. After going through the materials on record and after hearing the submissions advanced on behalf of the parties and on consideration of the order of the CEGAT passed in the aforesaid appeal setting aside the order of confiscation and passing an order that the writ petitioner was entitled to consequential relief, I am of the view that the writ petitioner is entitled to refund of the aforesaid sum with statutory interest which is to be calculated under section 27A of the Customs Act. In paragraph 4 of the writ application it has been categorically stated that the writ petitioner filed such application for refund before the respondent No. 2 on April 6,1992. It appears from the record of this case that time to file affidavit-in-opposition to the writ application was extended from time to time but inspite of such extension it appears now no affidavit has been filed by the respondent to controvert the submissions made in the writ application including the statement made in paragraph 4 of the writ application. Mr. Sarkar appearing on behalf of the Customs Authorities submits that since nothing has been produced before this Court showing such application for refund was at all filed by the writ petitioner it must be held that no such application was filed by the writ petitioner. I am unable to agree with this submission of Mr. Sarkar. In paragraph 4 of the writ application it has been categorically stated that an application was made on April 6,1992 for refund of the aforesaid sums. This paragraph 4 of the writ application has not been denied by filing any affidavit-in-opposition. That being the position it must be held that the statements made in paragraph 4 of the writ application must be deemed to have been admitted by the respondents. Therefore I must hold that the statements made in paragraph 4 of the writ application are true and correct and therefore the writ petitioner has filed an application for refund of the amount claimed in the said application before the respondent No. 2. Mr. Sarkar however can not dispute that in view of the order of the CEGAT the writ petition is entitled to refund of the sum which has been asked for by them in their application for refund but, he disputes that the writ petitioner is entitled to have refund the aforesaid sum with statutory interest. After hearing the Learned Counsel for the parties and after going through the materials on record I am also of the view that the amount stated in the application is to be refunded with statutory interest in terms of section 27A of the Customs Act. By a subsequent notification issued on this question it has now been decided that the Central Board of Excise and Customs has fixed the rate of interest at 15% per annum for the purpose of the said section. Therefore, I am of the view that since the writ petitioner was not paid the amount as mentioned in the application since April 6, 1992 the writ petitioner is also entitled to get refund of the aforesaid sum with statutory interest which is to be paid in terms of section 27A of the Customs Act by which 15% interest has now been fixed. For the reasons, aforesaid this writ application is allowed. The Customs Authorities is directed to calculate the interest which is payable to the writ petitioner on the aforesaid sum of Rs. 1,64,963.33p. within a month from this date and such payment will be made along with the principal sum of Rs. 1,64,963.33p. within a month from the date of communication of this order to the petitioner positively. There will be no order as to costs.