PREM CABLES PVT LTD Vs. ASSISTANT COLLECTOR PRINCIPAL

JUDGEMENT

(1.) THESE are eight writ petitions under Article 226 of the Constitution of India and can be conveniently disposed of by a s ingle judgment as they have been heard together and the questions involved in all of them are the same.

(2.) IT will suffice to state the facts in Writ Petition No. 1961 of 1970. The petitioner in connection with its business of manufacture of Aluminium Conductor Steel Reinforced and all Aluminium Conductors, imported Electrolytic Grade Aluminium Wire Rods which were not extruded from outside India. One such consignment was imported under Bill of Entry No. 2431, dated July 7, 1965. The consignment consisted of 9.165 M. T. of Electrolytic Grade Aluminium Wire of 90% to 99.5% purity and 3' diameter. These goods were cleared from the Customs at Bombay and at the time of clearance, the Assistant Collector (Principal Appraiser) Customs, Bombay levied duties as under, - Customs Duty 16 1/2%Countervailing Duty Rs. 396 per M.T.

(3.) AS soon as, and immediately after the petitioner became aware of the aforesaid public notice, it preferred its claim on December 25, 1967 before the Principal Appraiser of Customs for the refund of the countervailing duty at Rs. 396/ - per -M.T. in respect of 9 -165 M.T. which was collected by the Assistant Collector (Principal Appraiser) Customs, Bombay and paid by the petitioner under a mistake as no such duty was leviable in law. The Principal Appraiser of Customs considered the claim of the petitioner and by his order dated January 30, 1968, despatched on January 31, 1968 and received by the petitioner on February 3, 1968 rejected the claim holding that the application for the refund of duty was time barred under Section 27(1) of the Customs Act, 1962 (for short, 'the Customs Act') as the same was not received within six months from the date of payment i.e. July 7, 1965. The order of the Principal Appraiser of Customs has been submitted by the petitioner along with the writ petition and has been marked Ex. 2. It bears the endorsement 'Copy forwarded for information to M/s. Prem Cables Private Limited, Post Office Pipalia Kalan via Beawar, Rajasthan with reference to their letter No. PCPL PIP (84)/67/2915, dated 25 -12 -67 with nil enclosures'. This order was received at Pipalia Kalan, District Pali, Rajasthan, on February 3, 1968. After the receipt of the order of Principal Appraiser of Customs, the petitioner preferred an appeal against that order before the Appellate Collector of Customs on April 2, 1968. The Appellate Collector, Customs, Bombay (respondent No. 2) rejected the appeal holding that the provisions of Section 27(1) of the Customs Act are mandatory and could not be relaxed and in this view of the matter, he confirmed the order of the Principal Appraiser of Customs and rejected the appeal on April 26, 1968. The copy of the order of the Appellate Collector, Customs, Bombay has been placed on record by the petitioner and has been marked Ex. '3. The copy of the order was forwarded for information to the petitioner at Pipalia Kalan via Beawar, Rajasthan, which was received on May 4, 1968. Thereafter, the petitioner filed a revision application against the order of the Appellate Collector, Customs, Bombay before the Joint Secretary to the Government, Ministry of Finance, Department of Revenue, New Delhi. By a consolidated order dated November 28, 1969 reproduced in Schedule A appended to the writ petition, the Government of India rejected the revision application. As the issue involved in the five revision applications preferred by the petitioner was the same, it was mentioned that the levy of Rs. 360/ - or 396/ - per M.T. does not represent any countervailing duty but was, in fact, part of the basic customs duty in terms of the exempt notifications mentioned in the order. In this view of the matter, it was observed that the petitioner's grievance was misconceived and no refund is due to the petitioner even on merits. It may be stated here that specific finding in regard to the objection that the application for refund was time -barred was not given. The copy of the order passed in revision was also forwarded to the petitioner at Pipalia Kalan via Beawar, Rajasthan. The petitioner has challenged the orders Ex. 2, Ex. 3 and the order reproduced in Schedule 'A' on the ground that the orders suffered from error apparent on the face of the record inasmuch as the duty of Rs. 396/ - per M.T. levied is only a countervailing duty under Section 2A of the Act and it is not basic duty as held by the Commissioner, Revision Applications, Government of India. According to the petitioner, this statement is erroneous and not based on the correct legal position as none of the notifications relied on by the Revisional Authority lends support to the conclusion to which the Revisional Authority has arrived at inasmuch as neither of these notifications provide that the duty of Rs. 396/ - per M.T. is a basic duty nor is there any exemption provided in respect of the duty leviable under Section 2 -A of the Act. As regards the question of. limitation, the contention of the petitioner is that Section 27 of the Customs Act has no application to its case, for, the levy and recovery of duty of Rs. 396/ - per M.T. was not under the provisions of any Act and as such, it was illegal and the Customs authorities were not entitled to retain illegal collection. The bar of making a claim for refund within six months from the date of collection is not applicable in this case The case of the petitioner further is that Section 27 of the Customs Act is ultra vires of the provisions of Article 19(f) of the Constitution of India.