Decided on May 09,1996

UNION OF INDIA Respondents


A.K.Dutta, J. - (1.)By this writ application under Article 226 of the Constitution of India the writ petitioners, Ashok Machine Tools Corporation and Another (hereinafter referred to as petitioners), have prayed the court for issue of a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to pay and place at the disposal of the petitioner while refunding the amounting of Rs. 14,56,056 as excess recovered in clearing the goods of the petitioner against Bill of Entry No. 426/91 dated 10.8.91 and further to pay interest on the said amount at the rate of 21% per annum from the date of deposit till the date of refund with direction that the amount be paid with interest within 72 hours from the date of grant of Rule", along with the other relief prayed for, for the reasons stated and on the ground made out therein.
(2.)A Gear Hobbying Machine was imported by the Petitioners on the basis of an Import Licence granted to them on 12th November, 1990 for import of such machinery on the recommendation of the Director General of Technical Development (hereinafter referred to as D.G.T.D.). The said Machine was subject to the payment of customs duty at the rate of 75 percent ad-valorem at the time of the said importation. An Exemption Notification, being No. 317/87, published by the Government of India on 17th September, 1987, exempting Customs duty on such machines in excess of 35 percent ad-valorem was then in force. Such exemption in terms thereof was subject to the condition that an officer not below the rank of Industrial Advisor to the DGTD under the Ministry of Industry, Government of India, shall certify in each case that such machine was imported for use in the Industry for manufacture of Machine Tools. After importation of the said Machine, in the aforesaid circumstances, the petitioners had submitted a Bill of Entry for Home Consumption, being No. 426/91, on 10th August, 1991, claiming the benefit of the said exemption in terms of the said Notification. The said Machine was discharged at the Calcutta Port on 21st August, 1991. The physical verification of the same was carried out by the respondents on 10th September, 1991, and the assessment of Customs Duty payable therefor was carried out by the respondent on 13th September, 1991. The Petitioners were informed at the time of assessment that the exemption claimed by them would not be available (to them) until such Certificate, as aforesaid, was produced by them. They (Petitioners) had thereupon submitted in writing that in as much as the relevant licence had been submitted pursuant to the recommendation of the DGTD, no separate certificate was required therefor. By their letter to the concerned respondent they had alternatively undertaken on 16th September, 1991 to submit the certificate, to be issued by the DGTD, within a period of six weeks, and had requested the respondent thereunder to assess and release the consignment at the rate of 35 percent Customs duty on their submitting the necessary provisional duty bond and and-use bond. The petitioner's aforesaid request was not acceded to by the respondent- authorities. The petitioners had paid the entire amount of Rs. 32,76,126 only, as assessed by the concerned respondent at the full rate (and not on the concessional basis), under protest on 17th September, 1991. The aforesaid machinery was thereafter released on 23rd September, 1991. The Certificate, as required in terms of the aforesaid Notification, was issued by the Office of the DGTD and was submitted by the petitioners to the respondents on the very next day on 24th September, 1991.The petitioners had thereafter filed a refund application before the respondent No. 3 for refund of the excess amount of duty paid by them, amounting to Rs. 14,56,056 only, on 20th February, 1992, under section 27 of the Customs Act, 1962 (hereinafter referred to as the Act.). Their said refund application not having been disposed of by the respondent-authorities till November, 1992, they have been constrained to file the instant writ application for the reliefs prayed for therein, in the aforesaid circumstances.
(3.)The writ petition filed by the petitioners is vehamently resisted by the contending respondents by filing an Affidavit-in-Opposition mainly on the following there grounds/points, touching the merit of the refund application:
(a) that the refund application had not been made in the requisite format; (b) that the payment of duty was not made by the petitioners under protest, and (c) that the condition imposed by the said Exemption Notification is a condition precedent for claiming concessional rate in terms thereof. No such certificate having been produced by the petitioners at and/or before the time of assessment and removal of the goods in question, the petitioners' application for refund could not have been allowed.


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