SHREE PIPES LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 13. 07. 1992,/7. 10. 1992 passed by the Assistant Collector, Central Excise and Customs Division, Ajmer, which has been filed with the writ petition as Annexure-35, whereby the petitioner's claim for refund of a sum of Rs. 2,86,379. 55 has been rejected.

(2.) A licence of the Public Bonded Warehouse was granted on 11. 02. 1986 as per Annexure-1 in the premises of M/s Shree Pipes Limited, Village Ojhada, Bhilwara, Corporation, Ojhada, Bhilwara. On 12. 02. 1986 a lettter was sent to M/s Shree Pipes Limited i. e. the petitioner by the Superintendent, Central Excise & Customs Range, Bhilwara to deposit the amount of Rs. 77,422. 80. It is the case of the petitioner that the aforesaid amount was deposited 'under-protest' and further amounts in this regard was also deposited by the petitioner as and when required and according to the petitioner, he has deposited a total sum of Rs. 3,07,074. 80 for the period February 1986 to June 1986. There is no dispute that this amount has been paid for and on behalf of the Central Warehousing Corporation, but the petitioner hereinabove. It has been submitted that the respondents had claimed this amount with reference to condition No. 2 of the licence Annexure-1, which reads as under: - "2. The licence shall apply for the renewal of the licence in the prescribed proforma not later than the last day of November of the year preceding to which the renewal relates. He should also deposit the cost of establishment and pension in advance in respect of Officer of Customs Deployed in the Warehouse for the whole year. In the event of the failure to do so, clearance shall not be permissible between the period after the expiry of the licence and the renewal. "

(3.) I have gone through the provisions contained in Sections 57,65, 124 and 128 of the Act. No doubt an appeal has been provided under Section 128 of the Act, but such appeal lies against any order passed under the Act by the Assistant Collector and only such orders, which were passed under the Act are appealable under Section 128 of the Act before the Collector, Customs. The provisions of Sections 124 of the Act relate to the issue of a show cause notice before the confiscation of goods etc. and it has been provided therein that no order confiscating any goods or imposing any penalty on any person shall be made under this chapter unless the owner of the goods or such person is given a notice etc. It is nobody's case that there was any confiscation of goods or that any penalty has been imposed and, therefore, even if in the show cause notice as was given in the instant case, the reference was made to Section 124 of the Act such reference is obviously erroneous and it would not give any statutory status to the controversy involed in this case with reference to Section 124 of the Act. The licence for the Warehouse is of course granted under Section 57 of the Act and the Assistant Collector may appoint public warehouse wherein dutiable goods may be deposited, but Section 65 deals with the manufacture and other operations in relation to goods in a warehouse and it has been provided therein that with the sanction of the Assistant Collector of Customs and subject to such conditions and on payment of such fees as may be prescribed, the owner of any warehoused goods, may carry on any manufacturing process or other operations in the warehouse in relation to such goods. Besides the fact that Mr. Gupta failed to point out that any manufacturing process or other operations were carried out, in the present case, I find from condition No. l, of the licence of the public bonded warehouse i. e. Annexure-1 that the licence itself has been granted under Section 57 of the Act for deposit of dutiable goods namely industrial raw material or component parts (not for manufacture in bond and other operations under Sections 65 ). In this view of the matter, I have no hesitation to say that there is no question of invoking Section 65 so as to say that the impugned order is an order under any condition under Section 65 of the Act, passed by the Assistant Collector and, therefore, the remedy of appeal under Section 128 of the Act could have been availed by the petitioner. Mr. Gupta has placed reliance on Asstt. Collector C. E. Chandan Nagar V. Dunlop India Ltd. (1 ). In this judgment the Supreme Court has laid down the well known principle that as and when any effective statutory remedy is available the writ jurisdiction cannot be invoked, there cannot be any quarrel with the aforesaid proposition of law laid down by the Supreme Court, but in the instant case, I do not find that there was any effective statutory remedy for the simple reason that according to the language of Section 128 of the Act itself only such orders are appealable, which are passed under the Act. It appears that in the instant case the impugned order, which has been passed, rejecting the claim of the refund is an order, which has been in the executive powers dealing with a case of deposit made 'under-protest' and a decision has been taken by the Assistant Collector, as to whether this amount was to be allowed to be refunded or not. The second preliminary objection, raised by Shri Gupta is also rejected accordingly.