ACHARYA BROTHERS Vs. UNION OF INDIA

JUDGEMENT

(1.) This suit has been filed by Acharya Brothers against Union of India. The case of the Plaintiff is that at all material times the plaintiff carried on business as exporters of Jute goods from India. The Plaintiff during February 1967 and May 1967 presented before the Custom House Calcutta diverse shipping bills for export of jute goods full particulars whereof have been given in paragraph 3 of the Plaint. In respect of jute goods intended to be exported under those shipping bills, the plaintiff paid a total sum of Rs. 35,227.72 by way of advance payment to be appropriated or adjusted towards customs duty that might be payable, upon the actual exportation of the jute goods as mentioned in the Shipping bills. The plaintiff has pleaded in the plaint that the said goods were not ultimately shipped by the plaintiff. As a result, notice with regard to non-shipment or short shipment of the said goods was duly filed with the customs authorities of the defendant. According to the plaintiff as no goods were exported from India no duty whatsoever could be levied and/or collected under the Indian Tariff Act, 1934 and/or Customs Act, 1962. As such the plaintiff became entitled to receive from the defendant and the defendant was obliged to refund the said sum of Rs. 35,227.72 to the plaintiff. The plaintiff also presented in the year 1967 at the Customs house, Calcutta diverse other shipping bills full particulars whereof would appear from paragraph 7 of the plaint. In respect of the said goods the plaintiff paid a total sum of Rs. 75,792.46 according to the plaintiff by way of advance payment to be appropriated or adjusted towards customs duty that might be payable upon the actual exportation of the said jute goods. According to the plaintiff, the customs authorities illegally and wrongfully detained the said goods and wrongfully alleged that the said goods were liable to be confiscated for alleged contravention of the provisions of the Foreign Exchange Act, 1947. The Assistant Collector of Customs issued Show Cause Notice on 7th July, 1967 requiring the plaintiff to show cause as to why the said goods should not be confiscated Under the Customs Act and as to why penal actions should not be taken against the plaintiff. By an order dated 7th October, 1967 the Additional Collector of Customs, Calcutta directed confiscation of the goods and imposed penalties on the plaintiff under the Customs Act. Against the said order the plaintiff moved an application on 6th November, 1967 under Article 226 of the Constitution of India before this Hon'ble Court while issuing the Rule Nisi this Hon'ble Court was pleased to make Interim Order restraining the customs authorities from taking any steps in furtherance of the said order dated 7th November, 1967. Thereafter the plaintiff made an application for extension of the said Interim Order dated 6th November, 1967 in the said Article 226 application, and the said application was disposed of on 22nd December, 1967 by consent of the parties. Under the said consent order the customs authorities were given liberty to sell the goods which were lying in their custody and the sale proceeds are to be held by them subject to further order of this Hon'ble Court. It was also directed that the plaintiff would not withdraw a sum of Rs. 3,95,103.42 which was lying deposited with the Customs authorities on account of the plaintiff. Subject to further order of this Hon'ble Court, it was also ordered that the customs authorities would not give effect to said order dated 7th October, 1967 till the disposal of the said Rule. The sum of Rs. 35,222.72 mentioned in paragraph 4 of the plaint forms part of the sum of Rs. 3,95,103.42 but the sum of Rs. 75,792.46 was not included in the said sum of Rs. 3,95,103.42. The customs authorities sold the said goods for a sum of Rs. 1,64,000.42, on 30th January, 1969 the Hon'ble Mr. Justice T.K. Basu was pleased to make the Rule Nisi absolute and quash the said order dated 7th October, 1967 and the customs authorities were directed to forbear from giving any effect to the said purported Order in any manner whatsoever. From the said Order and judgment the customs authorities preferred an application was made by the Customs authority for stay of operation of the said judgment and order dated the 30th January, 1969. By consent of the parties on 16th September, 1969 an order was made staying the operation of the said judgment and order dated 30th January, 1962 and it was further directed that the customs authorities would deposit within fortnight from date a sum of Rs. 5,59,145.42 held by them in the State Bank of India in fixed deposit to fetch the best possible interest and that amount would be held subject to further order of the Hon'ble Court. The said sum of Rs. 5,59,145.42 comprised the said sum of Rs. 3,95,103.42 which had been paid by the plaintiff on account of duty and a sum of Rs. 1,64,042 representing the sale proceeds of the goods sold by the customs authorities pursuant to order of this Hon'ble Court. The appeal filed by the customs authorities was dismissed on 6th March, 1970 and the judgment and order which was passed by the Hon'ble Mr. Justice T.K. Basu on 30th January, 1969 became final and binding on the parties. After the dismissal of the appeal the plaintiff called upon the customs authorities to refund the said sum of Rs. 5,59,145.42 but the Customs authorities only returned to the plaintiff a sum of Rs. 5,24,632.42 and according to the plaintiff wrongfully and arbitrarily refused to pay to the plaintiff the said sum of Rs. 35,227.72 although that sum was included in the said sum of Rs. 5,59,145.42. On the plea that the plaintiff had not applied for refund of the said sum within the period provided under the Customs Act, 1962. According to the plaintiff the Customs authorities are wrongfully withholding the payment of the said sum of Rs. 35,227.72 and the sum of Rs. 75,792.46 without any basis right or authority whatsoever.

(2.) According to the plaintiff, this money was paid to the Customs authorities by way of advance on account of customs duty which would have become leviable in case the plaintiff had exported the said goods under the relevant shipping bills mentioned above. As the said goods were not exported by the plaintiff the defendant has no right whatsoever to withhold and appropriate or retain the siad total sum of Rs. 1,11,020.80.

(3.) According to the plaintiff, the consideration, if any for the payment of the said sums has totally failed and the plaintiff had become entitled to refund of the said sum. The plaintiff has pleaded in paragraph 26 of the plaint that the defendant and/or its duly authorised agent have acknowledged its liability to the plaintiff in the affidavits and letters filed and/or written by and on behalf of the defendant. Accordingly to the plaintiff from 27th December, 1967 till 6th March, 1970 when the said appeal was disposed of the plaintiff was restrained by orders of this Hon'ble Court from releasing its dues. As such no suit could be instituted by the plaintiff for recovery of the said dues. In the premises, the plaintiff claims that no part of the plaintiffs claim is barred by the law of limitation. As such this suit has been filed by the plaintiff.