Monoranjan Mallick, J. - (1.) The Indian Cable Co. Ltd. in the writ petition prays for a declaration that the purported assessment of the imported cable impregnating non -drawing N.D. 354 under Tariff Item No. 38.01/19(1) of the Customs Tariff Act of 1975 is without jurisdiction, that the said compound containing 70% by weight Petroleum Mineral Oil was assessable under the Tariff Item No. 27.10(1) of the Customs Tariff Act, 1975 and the Respondents are bound to refund the excess amount realised tinder Item No. 38.01/19(1) of the Customs Tariff Act, 1975 and for a writ of Mandamus for directing the Respondents to forthwith refund to the petitioner the sum of Rs. 44,446.38 with interest at the rate of 12% per annum being the excess duty realised by the respondents without jurisdiction and without authority of law.
(2.) The facts are briefly as follows : The petitioner is a well -known manufacturing company having its factories in diverse places and its registered office at 9, Hare Street, Calcutta. The petitioner No. 1 carries on the business for manufacturing various kinds of electrical cables and for the said purpose has to import, inter alia, cable impregnating compound. The said imported cable impregnating compound contains more than 70% of weight of Petroleum Mineral Oil. On 15th June, 1978 the petitioner imported 20 metric tonnes cable impregnating non -drawing compound No. ND -354 from M/s. Dussek Brothers Ltd. London under Bill of Entry No. D/1 -558 dated 15th June, 1978 on board the vessel S.S. PINDAROS. The said imported materials contained more than 70% of Petroleum Mineral Oil and was meant for actual use in industrial consumption in the manufacture of cable in the factory of the petitioner No. 1 at Jamshedpur. The petitioners duly submitted all relevant documents including the technical datas supplied by the foreign manufacturer as well as the test certificate and the relevant catalogue and literature to the Custom's Appraiser along with the Bill of Entry for the purpose of assessment of import duty to be levied under the law in respect of the said imported materials which clearly stated that the said materials contained not less than 70% by weight of Petroleum Mineral Oil. The Customs Authority without making any test purported to assess and collect the import duty on the said imported materials under the Heading No. 38.01/19(1) of the Customs Tariff Act and the petitioners had to pay a sum of Rs. 1,11,115.96 on account of the said purported duty calculated at the rate of 60%plus 15% under the mistaken belief that Customs Authority has calculated the duty in accordance with law.
(3.) If the Customs Authorities examined and tested the said imported goods they would as in the various cases as mentioned in the writ petition assessed and levied the said imported goods as falling under Entry No. 27.10(1) of the Customs Tariff Act, 1975 and should have levied the duty at the rate of 40% and 5% ad valorem. In the result the petitioners are entitled to get the refund of Rs. 44,446.38. The petitioners applied by the application dated November 22,1979 to the Assistant Collector of Customs appraising Refund Section, Customs House, Calcutta for refund of the above sum but by the order dated 6th December 1979 the Assistant Collector of Customs rejected the application on the ground that the same is barred by limitation Under Sec. 27 of the Customs Act. Being aggrieved the petitioner preferred appeal to Appellate Collector of Customs, Customs House, Calcutta but the appeal has also been dismissed on 23rd May 1980. They then preferred revisional application which has been heard by the Customs, Excise and Gold (Control) Appellate Tribunal, Special Bench, and that Bench by the order dated 11th August 1983 rejected the revision petition.;