1986 (8) TMI 72 - HC - Customs

Summary

Issues:
1. Assessment of customs duty on imported rock phosphate under Entry 35 or Entry 87.
2. Refusal of refund by the Department despite a court judgment favoring the petitioners.

Analysis:
1. The petitioners, a chemical manufacturing company, imported rock phosphate for the production of Phosphoric Acid. The Government of India canalized the import of rock phosphate through a Public Sector Agency and laid down procedures for import. The petitioners faced a dilemma regarding the assessment of customs duty on the imported rock phosphate. If assessed under Entry 35, only countervailing duty was payable. However, if treated as falling under Entry 87, only Customs duty was payable. The petitioners contested the assessment under Entry 87 for multiple consignments, leading to legal proceedings. A judgment by Mr. Justice Lentin confirmed that the consignment should be assessed under Entry 35, not Entry 87, which was upheld by the Division Bench and the Supreme Court. Despite this, the Department refused to refund the excess duty paid under protest, leading to the present petition.

2. The petitioners challenged the Department's refusal to refund the excess duty paid under protest despite the court judgment in their favor. The Deputy Collector informed the petitioners that the refund claim was rejected in 1973, citing the importer as a different entity. The petitioners argued that the Department's refusal was arbitrary and unsustainable. They highlighted that the Department failed to notify them about the status of their appeal and refund application, and mistakenly believed the importer was the canalizing agency, not the petitioners. The court found the Department's actions unjustifiable, especially considering the illegality of the duty collection under Entry 87. Consequently, the court set aside the communication rejecting the refund and directed the Deputy Collector to refund the amount claimed by the petitioners within two months, with interest if delayed.

In conclusion, the judgment resolved the issues by affirming the correct assessment of customs duty under Entry 35, ordering the refund of excess duty paid by the petitioners, and criticizing the Department's unjust refusal to comply with the court's decision.