DUNLOP INDIA LIMITED Vs. UNIION OF INDIA

JUDGEMENT

(1.) The petitioner is a public limited company engaged in the manufacture and sale of automobile types and other rubber products: The petitioner-company imported raw materials, one such being what is known as V.P. Latex. This raw material imported by the petitioner was subjected to customs duty under Item 87 of the First Schedule to the Tariff Act, 1934. The petitioner claimed that the raw material in question would fall under Item 39. But the customs authorities did not accept the contention. Item 39 read:

(2.) The learned Advocate General, who appeared for the petitioner, very vehemently contended that having regard to the position of the law and having regard to the decision of the Supreme Court, which, according to Article 141 of the Constitution of India, is the law of the land, the respondents herein were under an obligation to repay the excess duty which they had collected by subjecting the article in question to levy under Item 87 instead of under Item 39, and even with regard to the countervailing duty, the respondents are under a legal obligation to repay the same, since the article in question is admittedly not manufactured in this country, and therefore, it is not liable to any excise duty. In support of this contention, the learned Advocate General placed very strong reliance on certain observations of the Supreme Court in D. Cawasji and Co. etc. v. State of Mysore and Anr. ; and two Division Bench decisions of this Court, namely. The Assistant Collector of Customs, Customs House, Madras and Ors. v. Premraj and Ganapatraj and Co. (P) Ltd. (Now known as Madras Electrical Conductors (P) Ltd.) 90 L.W. 719 and Durga Shankar Industries, Vijayawada v. The Govt. of India and Anr. Writ Appeal No. 248 of 1975 Judgment dated 6th January 1979.

(3.) As against this contention of the learned Advocate General, who appeared for the petitioner, Mr. U.N.R. Rao, the learned Counsel appearing for the respondents, while not disputing the jurisdiction of the High Court under Article 226 of the Constitution of India to issue a writ of Mandamus directing the respondents to refund the duty illegally and unauthorisedly collected in appropriate cases, contended that on the facts and circumstances of this particular case, the Court should not exercise its discretion in favour of the petitioner herein. We shall now consider the relative merits and demerits of these contentions with reference to the law laid down by the Supreme Court as well as the facts and circumstances of this case.