2003 (9) TMI 93 - HC - Customs

Summary

Issues:
1. Refund of customs duty under Section 27 of the Customs Act.
2. Duty drawback claimed under Section 74 of the Customs Act.
3. Validity of Section 76 of the Customs Act.

Issue 1: Refund of customs duty under Section 27 of the Customs Act:
The petitioner imported a defective machinery which was re-exported within the warranty period for replacement. The Customs authorities declined the refund application filed under Section 27 of the Customs Act. The Assistant Collector of Customs rejected the duty drawback claim under Section 74 of the Customs Act, advising the petitioner to approach the Drawback Department. The Collector of Customs (Appeals) allowed the claim, but the Government of India set aside the decision, stating that duty drawback could not be granted as the export was not on a drawback shipping bill. The High Court held that the refund under Section 27 was not admissible, and the relief sought pertained to the denial of duty drawback under Section 74.

Issue 2: Duty drawback claimed under Section 74 of the Customs Act:
To avail duty drawback, goods must be exported on a drawback shipping bill. In this case, the machinery was re-exported under a free shipping bill, not a drawback shipping bill. As per Section 76 of the Customs Act, duty drawback is not allowed if the market value of the export goods is less than the drawback due. The market value of the defective machinery exported was not determined, making duty drawback inadmissible. The petitioner's argument that the market value declared on the free shipping bill should entitle them to drawback was rejected, as the actual market value of the defective machine was not ascertained.

Issue 3: Validity of Section 76 of the Customs Act:
The petitioner argued that Section 76 of the Customs Act is arbitrary as it lacks guidelines to determine market value. The High Court disagreed, stating that the market price for Section 76 is determined based on the wholesale price of goods in India. The court held that the denial of duty drawback, although seemingly harsh, was in accordance with the law, and they could not direct a grant of drawback contrary to statutory provisions.

The High Court dismissed the petition, emphasizing that they are bound by the rule of law and cannot direct a grant of duty drawback against the provisions of the Customs Act. The court rejected the argument that they should exercise powers similar to Article 142 of the Constitution for complete justice, stating that such prerogative lies with the Apex Court.