- (1.) The petitioner herein challenges an order passed by the Collector of Customs and Central Excise (Appeals) dated 10-1-1991 in Appeal No. C3/1031 to 1039/90. By the instant order, the Collector has disposed of all the nine appeals. The appeals were made for refund of (1) differential duties on landing charges; (2) refund of interest charges; and (3) refund of duty seeking the benefit of Customs Notification No. 60/87. The Appellate Authority rejected all the three heads. The present writ petition, however, is restricted only to the refund of differential duty on landing charges. The Appellate Authority rejected the refund of differential duty on landing charges on the basis of order passed by the Customs, Excise and Gold (Control) Appellate Tribunal (in short 'CEGAT' dated 16-9-1988 vide : Order No. 475/1988 feeling bound by the said order. The issue raised in this writ petition is about the correctness of the order of CEGAT which was binding on the Appellate Authority; the order passed by which is impugned in this writ petition.
(2.) The petitioner has not chosen to file an appeal against the Appellate Authority before CEGAT as according to the petitioner, it would have been futile to file an appeal, since the CEGAT had already taken the view against it in the above-mentioned order, and, therefore, has chosen to file this petition direct. According to the petitioner, the CEGAT has taken an incorrect view regarding the duty on the differential landing charges and has denied the refund on entirely untenable grounds and that view needs correction by this Court.
(3.) The duty is charged and assessed under Section 14 of the Customs Act, 1962 on the value of the imported goods. Rule 9(2) as it stood in 1988 was as under:- "9 (2). For the purposes of Sub-section (1) and Sub-section (1A) of Section 14 of the Customs Act, 1962 (52 of 1962) and these rules, the value of imported goods shall be the value of such goods, for delivery at the time and place of importation and shall include. (a) the cost of transport of the imported goods to the place of importation; (b) loading, unloading and handling charges associated with the delivery of the imported goods at the place of importation; and (c) the cost of insurance : Provided that in the case of goods imported by air, the cost and charges referred to in clauses (a), (b) and (c) above, (i) Where such cost and charges are ascertainable, shall not exceed twenty per cent of the free on board value of such goods. (ii) Where such cost and charges are not ascertainable such cost and charges shall be twenty per cent of the free on board value of such goods, Provided further that in the case of goods imported other than by air and the actual cost and charges preferred to in clauses (a), (b) and (c) above are not ascertainable, such cost and charges shall be twenty-five per cent of the free on board value of such goods." Thus, the duty is assessed on the actual value added by the cost of transport viz., loading, unloading and handling charges as also the cost of insurance. The petitioner submits that since the landing charges (loading and unloading charges) were not ascertained at the time of actual assessment of the duty, notional rate of 0.64% to 1% landing charges used to be added to the value of the goods for arriving at the assessable value. It was only after the duty was assessed in the above-mentioned fashion that the same used to be paid by the importer and it was only thereafter he could arrange for the clearance of the goods from the Port Trust along with the shipping documents and a duly assessed Bill of Entry. It was at this stage of clearance that the importer used to file import applications and it was at that stage, the Port Trust authorities used to charge the actual landing charges in contradistinction to the notional landing charges paid by the importer on the basis of which the duty was assessed. The petitioner submits that in most of the cases, the notional charges at the rate of 0.64% to 1% on the basis of which the duty was charged used to be much higher than the actual charges payable and actually paid by the importer and, therefore, there was a practice prevalent that, on completion of the clearance formalities, the importer used to file refund application before the Customs Department for refund of difference of customs duty paid on the notional basis and the actual basis. The petitioner states that if everything was in order and if in fact, the actual landing charges payable and paid were lesser than the notional landing charges, then the refund used to be ordered by the Customs Department. The petitioner submits that the petitioner imported various consignments of goods during the part of 1989 and finding that the actual landing charges being substantially lesser than the notional landing charges, the petitioner preferred refund applications before the fourth respondent. However, the applications were rejected by the fourth respondent relying on the judgment of the CEGAT (Collector of Customs v. India Polyfibres Ltd.). The petitioner filed nine appeals against the order of the fourth respondent. However, those appeals have been dismissed by the Collector of Customs and Central Excise (Appeals), the third respondent herein, necessitating the filing of the present petition.;