CALLA, J. - (1.) THIS writ petition is directed against the order dated 13. 07. 1992,/7. 10. 1992 passed by the Assistant Collector, Central Excise and Customs Division, Ajmer, which has been filed with the writ petition as Annexure-35, whereby the petitioner's claim for refund of a sum of Rs. 2,86,379. 55 has been rejected.
(2.) A licence of the Public Bonded Warehouse was granted on 11. 02. 1986 as per Annexure-1 in the premises of M/s Shree Pipes Limited, Village Ojhada, Bhilwara, Corporation, Ojhada, Bhilwara. On 12. 02. 1986 a lettter was sent to M/s Shree Pipes Limited i. e. the petitioner by the Superintendent, Central Excise & Customs Range, Bhilwara to deposit the amount of Rs. 77,422. 80. It is the case of the petitioner that the aforesaid amount was deposited 'under-protest' and further amounts in this regard was also deposited by the petitioner as and when required and according to the petitioner, he has deposited a total sum of Rs. 3,07,074. 80 for the period February 1986 to June 1986. There is no dispute that this amount has been paid for and on behalf of the Central Warehousing Corporation, but the petitioner hereinabove. It has been submitted that the respondents had claimed this amount with reference to condition No. 2 of the licence Annexure-1, which reads as under: - "2. The licence shall apply for the renewal of the licence in the prescribed proforma not later than the last day of November of the year preceding to which the renewal relates. He should also deposit the cost of establishment and pension in advance in respect of Officer of Customs Deployed in the Warehouse for the whole year. In the event of the failure to do so, clearance shall not be permissible between the period after the expiry of the licence and the renewal. " While the petitioner went on paying the amount against the item of cost of establishment and pension in advance for the salary of one Inspector and one Class IV employee, who remained present at Warehouse for the purpose of recovering the custom duty because the dutiable goods are stored in this Warehouse, the petitioner also went on protesting that this amount could not be recovered, from the petitioner and if at all any amount is to be recovered, it must be recovered on hourly basis i. e. for the actual number of hours, for which, the employees of the Customs Department actually worked at the Warehouse for the purpose of recovering the custom duty. Mr. Paras Kuhad, learned counsel for the petitioner has invited my attention to the document Anx. 17, which is a letter sent by the Central Excise & Customs Collectoratc, Jaipur under the signatures of the Superintendent, Customs to the Assistant Collector way back on December 18, 1987, wherein, the Assistant Collector, Central Excise & Customs Department, Division Ajmer was requested to examine the petitioner's representations in the matter of the refund of the supervision charges in the light of the observations made in this letter dated December 18, 1987 and that he may also Consider disposal of the party's refund claim in the light of clarification issued by the Director of Customs, New Delhi's D. O. F. No. 473/235/87-Cus. VII dated 21. 9. 97 issued vide letter C. NO. VIII (H) 40/5/86/75 dated 21. 9. 87. Not only this, in the letter it was also mentioned to the Assistant Collector that if he has any further doubts in the matter, he may report with full facts and his comments. It appears from the record that the decision in this regard was not taken, the petitioner deposited the amounts 'under-protest' and filed claims from refund and made representations but as late as on 7. 03. 1989, the Assistant Collector conveyed to the Superintendent, Central Excise & Customs Department vide document Annexure-32 in the matter of recovery of overtime charges, directing to recover the overtime charges on hourly basis from the party unless and until the post is separately created on cost recovery basis. Thus, there is no dispute for the period beyond 7. 03. 1989 and it appears that the Assistant Collector while passing the impugned order Annexure-35 dated 13. 07. 1992/7. 10. 1992 has taken into consideration the amount deposited by the petitioner for the period beyond 7. 03. 1989 uptil June 1989 and has, therefore, rejected the petitioner's refund claim in a sum of Rs. 2,86,379. 55 instead of Rs. 3. 07,074,80. Thus, the refund claim of the petitioner for the period February, 1886 to 7. 03. 1989 has been rejected by the impugned order Annexure-35 and against this order the present writ petition has been preferred. Mr. Sudhir Gupta, learned counsel for respondents No. l and 2 has raised following preliminary objections; (i) that the petitioner had no locus standi to file and maintain this writ petition because the demand has been raised against the Central Warehousing Corporation and the amount had been paid for and on behalf of the Central Warehousing Corporation and, therefore, if at all any writ petition was to be filed, it was the Central Warehousing Corporation, which should have preferred the writ petition. This objection of the petitioner may not detain me from proceeding further for the simple reason that admittedly the amount in question had been paid by the petitioner and it is the petitioner's claim for refund, which has been rejected and the petitioner is the directly concern party because, it is the petitioner, who has infact parted with the money in question. This preliminary objection of Mr. Gupta is therefore, rejected. (ii) that the impugned order Annexure-35 dated 13. 07. 1992/7. 10. 1992, passed by the Assistant Collector, Customs is appealable under Section 128 of the Customs Act, 1962 (for brevity, 'the Act') and although he started with the argument with reference to Section 128 of the Act that the impugned order has been passed by the Assistant Collector under Section 124 of the Act, he then submitted that the impugned order has not been passed under any specific provisions of the Act, but it has been passed in pursuance of the condition No. 2 of the licence and that this is a condition which is covered under Section 65 of the Act, as the licence for the Warehouse has been granted under Section 57 of the Act.
(3.) I have gone through the provisions contained in Sections 57,65, 124 and 128 of the Act. No doubt an appeal has been provided under Section 128 of the Act, but such appeal lies against any order passed under the Act by the Assistant Collector and only such orders, which were passed under the Act are appealable under Section 128 of the Act before the Collector, Customs. The provisions of Sections 124 of the Act relate to the issue of a show cause notice before the confiscation of goods etc. and it has been provided therein that no order confiscating any goods or imposing any penalty on any person shall be made under this chapter unless the owner of the goods or such person is given a notice etc. It is nobody's case that there was any confiscation of goods or that any penalty has been imposed and, therefore, even if in the show cause notice as was given in the instant case, the reference was made to Section 124 of the Act such reference is obviously erroneous and it would not give any statutory status to the controversy involed in this case with reference to Section 124 of the Act. The licence for the Warehouse is of course granted under Section 57 of the Act and the Assistant Collector may appoint public warehouse wherein dutiable goods may be deposited, but Section 65 deals with the manufacture and other operations in relation to goods in a warehouse and it has been provided therein that with the sanction of the Assistant Collector of Customs and subject to such conditions and on payment of such fees as may be prescribed, the owner of any warehoused goods, may carry on any manufacturing process or other operations in the warehouse in relation to such goods. Besides the fact that Mr. Gupta failed to point out that any manufacturing process or other operations were carried out, in the present case, I find from condition No. l, of the licence of the public bonded warehouse i. e. Annexure-1 that the licence itself has been granted under Section 57 of the Act for deposit of dutiable goods namely industrial raw material or component parts (not for manufacture in bond and other operations under Sections 65 ). In this view of the matter, I have no hesitation to say that there is no question of invoking Section 65 so as to say that the impugned order is an order under any condition under Section 65 of the Act, passed by the Assistant Collector and, therefore, the remedy of appeal under Section 128 of the Act could have been availed by the petitioner. Mr. Gupta has placed reliance on Asstt. Collector C. E. Chandan Nagar V. Dunlop India Ltd. (1 ). In this judgment the Supreme Court has laid down the well known principle that as and when any effective statutory remedy is available the writ jurisdiction cannot be invoked, there cannot be any quarrel with the aforesaid proposition of law laid down by the Supreme Court, but in the instant case, I do not find that there was any effective statutory remedy for the simple reason that according to the language of Section 128 of the Act itself only such orders are appealable, which are passed under the Act. It appears that in the instant case the impugned order, which has been passed, rejecting the claim of the refund is an order, which has been in the executive powers dealing with a case of deposit made 'under-protest' and a decision has been taken by the Assistant Collector, as to whether this amount was to be allowed to be refunded or not. The second preliminary objection, raised by Shri Gupta is also rejected accordingly. Coming to the merits of the case, Mr. Paras Kuhad has argued that the condition No. 2 itself does not permit the realisation of the amount, which the petitioner was made to deposit. According to this condition, the parties have to deposit the cost of establishment and pension in advance in respect of officer of Customs deployed in the warehouse for the whole year. Mr. Kuhad has submitted that in the instant case no employee of the Customs Department was deployed in the ware house for the whole year and throughout in his representations he has protested that when no such staff was deployed for the whole year and no employee of the Customs Department was working there on whole time basis in relation to the working at this warehouse. The document Annexure-17, which has been issued by the Central Excise & Customs Collectorate, Jaipur also shows that such controversy was raised by the petitioner and in this letter it has been mentioned as under; - "if the Customs Inspector was not deployed on whole time basis, how could it be said that the officer has rendered the service to the warehouse keeper on cost recovery basis". The document Annexure-32 dated 7. 03. 1989, which is a document under the signatures of none-else, but the Assistant Collector, shows that the recovery is to be made on hourly basis from the party, unless and until the post is separately created on cost recovery basis. This document under the signatures of Assistant Collector himself furnishes a clinching evidence of the Factual position that there was no staff of the Customs Department on whole time basis working in the Corporation in this regard and, therefore, I am of the opinion that in terms of condition No. 2 in the licence itself there is no question of the recovery of the entire amount of the salary of the Inspector and Class IV employee of the Customs Department, who are working in the Corporation for the purpose of collecting the customs duty, may, in the impugned order Annexure-35, the Assistant Collector has further observed in the end while rejecting the petitioner's claim for refund that the plea taken by the party that the staff, for which, cost of establishment charges deposited and claimed for refund were not utilised by them on whole time basis, is not acceptable as the staff was made available as and when required by them. Thus, the services of the Customs Department were utilised as and when required and there was no person on whole time basis for the whole year. Mr. Gupta has submitted that the respondents have not admitted in the reply that there was no staff of the Customs Department on whole time basis. That may be so, but it is clearly discernible from the correspondence in the order referred to hereinabove that whole time staff had not been deployed and, therefore, the argument of Shri Gupta that this amount could be recovered under Condition No. 2 of the licence is not tenable. ;