1994 (3) TMI 114 - HC - Customs

Summary

Issues Involved:
1. Locus standi of the petitioner.
2. Appealability of the impugned order.
3. Validity of the demand under Condition No. 2 of the licence.
4. Discrimination and violation of Article 14 of the Constitution.
5. Entitlement to refund based on hourly basis charges.

Summary:

1. Locus Standi of the Petitioner:
The respondents argued that the petitioner had no locus standi to file the writ petition as the demand was raised against the Central Warehousing Corporation. However, the court rejected this objection, stating that the petitioner had paid the amount and was directly concerned with the refund claim.

2. Appealability of the Impugned Order:
The respondents contended that the impugned order was appealable u/s 128 of the Customs Act, 1962. The court examined Sections 57, 65, 124, and 128 of the Act and concluded that the impugned order was not passed under any specific provision of the Act but was an executive decision. Hence, the remedy of appeal u/s 128 was not applicable. The court rejected the preliminary objection regarding the availability of an effective statutory remedy.

3. Validity of the Demand under Condition No. 2 of the Licence:
The petitioner argued that Condition No. 2 did not permit the realization of the amount demanded as no Customs Department staff was deployed on a whole-time basis in the warehouse. The court found that the Assistant Collector's own document (Annexure-32) indicated that recovery should be on an hourly basis unless a post was created on a cost recovery basis. Therefore, the court held that the demand for the entire salary amount was not justified.

4. Discrimination and Violation of Article 14:
The petitioner claimed that in other public warehouses, supervision charges were recovered on an hourly basis, whereas in this case, the entire salary was demanded, which was discriminatory and violative of Article 14 of the Constitution. The court noted that this factual position was not controverted by the respondents and found the plea of discrimination to be valid.

5. Entitlement to Refund Based on Hourly Basis Charges:
The court emphasized fairness and lack of arbitrariness as fundamental to Article 14. It directed the respondents to examine the records and determine the actual hours worked by Customs Department employees in the warehouse from February 1986 to 7th March 1989. The respondents were instructed to refund the excess amount to the petitioner after deducting the hourly charges as per the Customs (Fees for Rendering Services by Customs Officers) Regulations, 1968.

Conclusion:
The writ petition was allowed, and the impugned order (Annexure-35) was quashed. The respondents were directed to calculate the refundable amount based on hourly charges and refund it to the petitioner within two months. Failure to do so would entitle the petitioner to interest at the rate of 12% per annum on the refundable amount.