- (1.) These appeals are directed against a decree dated 2nd March, 1994 passed by Sengupta, J. (as His Lordship then was) and an order dated 5th September, 1999 passed in execution of the decree. The hearing of the suit appears to have been concluded on 7th March, 1986. No evidence was taken. The appellant claims to have become aware about the decree only when a demand on that basis was made by a letter dated 19th November 1999 for a sum of Rs. 31,39,290.19 together with further interest @ 12% per annum from 11th August, 1999 until realisation. The decree was ultimately put into execution. An order dated 5th September, 2002 was passed in execution of the decree directing the appellant to pay a sum of Rs. 33,17,063.96. An order attaching properties of the appellant was also passed.
(2.) The facts of the case briefly stated are as follows: The plaintiff at the material point of time was engaged in the business of exporting Mica. During the period between 14th October, 1966 and 17th February, 1967 the plaintiff exported diverse quantity of Mica from the Port of Calcutta to foreign countries, Naturally Customs duty was assessed. In assessing the export duty, the Customs Authority is alleged to have realised an excess sum of Rs.1,05,745.25 by wrongfully and illegally taking into consideration the cess, payable at the rate of two and half per cent of the value of the Mica exported, as part of the value thereof. In other words cess payable at the rate of two and half percent ad valorem was included in the price of the goods for the purpose of section 14 of the Customs Act and by inclusion of the aforesaid cess in the price of the goods Customs duty was realised on a larger amount. If the price of goods was Rs. 100 it became Rs. 102.50 inclusive of cess. Customs duty was assessed on the sum of Rs.102.50 which according to the plaintiff the Customs Authority had no jurisdiction to do. The Customs authority by illegally inflating the price of the goods realised Rs.1,05,745.25 in excess than what was legally payable.
(3.) The plaintiff claims to have been under the impression that the cess was includable in the price of the goods and that is why it did not raise any objection. Sometime in July, 1968 the plaintiff discovered from an order No. 1197-1205/1968 dated 27th May, 1968 passed by the Appellate Collector of Customs, Calcutta that no export duty could be charged or was chargeable on the amount of cess. The plaintiff thereafter claimed refund which was refused on the ground of limitation. The plaintiff has thereafter filed the suit for recovery of the aforesaid sum of Rs.1,05,745.25. The aforesaid sum is stated to have been realised from the plaintiff in connection with 150 several invoices.;