Decided on August 11,1993

Steel Industrials Kerala Ltd. (Ship Breaking Unit) Appellant
Asstt. Collector Of Special Customs, Prev. Div. And Ors. Respondents


K.G. Balakrishnan, J. - (1.)PETITIONER is Government of Kerala undertaking fully owned by the Kerala Government. Petitioner purchased a ship by name 'M. V. State of Madhya Pradesh' for the purpose of breaking the same at petitioner's ship Breaking Unit at Beypore This ship was built in 1964 and the petitioner purchased the same in 1990 and the vessel arrived at Beypore on 15.5.1990. When the vessel arrived the Superintendent of Central Excise and Customs searched the ship and seized certain documents. Petitioner contended that no duty was payable, as per notification No. 118/59 dated 13.6.1959. However, a sum of Rs. 64,15,200/ - assessed as the provisional duty. In order to recover this amount petitioner's account was freezed and the petitioner's unit came to the verge of closure. Petitioner was served with a notice as to why the vessel should not be confiscated. Thereafter the 2nd respondent passed an order holding that the petitioner is entitled to clear the goods in view of notification No. 118/59. While the adjudication was pending, no refund was granted. On 30th December, 1991 petitioner applied for refund of the amount paid. Finally a lawyer notice was served on the respondents for refund of the amount. Petitioner filed an original petition before this Court for refund of the amount, as O.P. 9254 of 1992. Thereafter an order was served on the petitioner rejecting the refund stating that it was not proved to the satisfaction of the Asstt. Collector that duty was not collected from the customers. An appeal was filed thereafter to stay the order. That appeal was allowed vide text. P10 order, petitioner contends that inspite of Ext. P10 order no refund is granted to the petitioner. According to the petitioner respondents are liable to pay the petitioner a sum of Rs. 18,02,330/ - with 25% interest from 30.8.90 till date. Petitioner has also alleged that because of the nonpayment, petitioner had to borrow money from the banks for releasing the materials. "The production for about a month was lost when the market was at its peak. There was also bad publicity against the petitioner and the petitioner had to incur expenditure in contesting the case. Hence, the petitioner prays for a writ of mandamus or any other appropriate writ or order to compel the first respondent to refund the amount of Rs. 18,02,330/ - with 25% interest from 30.8.90.
(2.)THE 2nd respondent has filed a counter -affidavit for the purpose of C.M.P. 14561 of 1993. It is contended that the vessel M.V. State of Madhya Pradesh was brought to Beypore without observing the customs formalities. Petitioner company was not prepared to pay customs duty. A case was registered against the petitioner. The vessel was later assessed to customs duty for about Rs. 64,15,200/ -. Petitioner paid duty under protest. Later the case registered against the petitioner was adjudicated by the Collector of Central Excise and Customs, Cochin and the Collector as per Ext. P1 dropped the proceedings. It is alleged that an appeal has been filed before the Appellant Tribunal. Based on the Collector (Appeal's) order, petitioner filed refund claim for Rs. 64,12,200/ -. The petitioner also preferred an appeal before the Collector against the refund order of the Assistant Collector. It is alleged that the department is taking urgent steps for necessary orders in the appeal before the Appellate Tribunal.
I heard the petitioner's counsel and also the Addl. Central Govt. Standing Counsel. It is admitted by the Addl. C.C.S.C. that as per the existing order in force, the petitioner is entitled to get refund of Rs. 18,02,330/ -. The only contention urged by the Addl. Central Govt. Standing Counsel is that there is a pending revision. I do not think, this is sufficient ground to deny refund of the amount claimed by the petitioner. If the order under challenge is sought to be reviewed the revisional authority can pass appropriate orders. For the time being, the petitioner is entitled to get the refund. The first respondent is directed to pay Rs. 18,02,330 - to the petitioner with 16% interest from 30.8.90 till date of payment within a period of 15 days of the date of receipt of a copy of this judgment.

Original petition is disposed of as stated above.


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