2012 (10) TMI 195 - HC - Customs

Rate of conversion for measurement of timber imported Held that - There is no attempt on the part of the dealer to suppress the Turnover as alleged - petitioner filed an application for refund, which however was considered by the second respondent, allegedly in a wrong and perverse manner, leading to Ext. P7, whereby only a partial refund has been ordered Matter requires to be re-considered by the second respondent, so as to assess the actual facts, as to whether the petitioner is entitled to have the balance refund, if any, on applying the correct conversion table - Ext. P7 issued by the second respondent is set aside and the second respondent is directed to re-consider the matter

Summary

Issues:
Challenge to order based on conversion rate for timber import; Incorrect refund calculation; Allegation of wrong and illegal order for partial refund.

Analysis:
The petitioner challenged an order (Ext.P7) passed by the Commissioner regarding the conversion rate for measuring timber imported from abroad. The petitioner argued that the conversion rate used was incorrect, as it should have been 1 Hoppuston = 1.416M3, not 1.8027M3 as adopted by the Customs authorities. This issue stemmed from a previous judgment (Ext. P2) following a joint physical verification, leading to the current dispute over the conversion rate applied.

The physical verification conducted in the presence of various officials and stakeholders revealed discrepancies in the measurement of timber, but it was concluded that there was no suppression of turnover as alleged. This verification led to the dropping of penalty proceedings, and the petitioner subsequently sought a refund based on the correct conversion rate. However, the second respondent, while considering the refund application, used the incorrect conversion rate, leading to the petitioner challenging the partial refund order (Ext. P7) as being wrong and perverse.

The respondent argued that the petitioner had an alternative remedy through appeal under Section 128 of the Customs Act. The respondent explained that the conversion formula used was based on a downloaded source, and the delay in considering the refund application was due to the concerned officer becoming 'functus officio.' The petitioner contended that this stance was not justified, especially considering the Department's use of a different conversion formula in other instances, as evidenced by proceedings in Ext. P3.

The Court found merit in the petitioner's argument and directed the second respondent to reconsider the matter, taking into account the correct conversion table and ensuring uniformity with the formula used in other Ports. The second respondent was instructed to re-assess the refund entitlement of the petitioner promptly, within two months of receiving the judgment copy. The petitioner was directed to provide a copy of the judgment to the second respondent for further action, ultimately leading to the disposal of the Writ Petition.