9911796707
TMI Blog2013 (6) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... such period, the petitioners received 45 shipments of such imported coal at Navlakhi Port. To clear such consignment, the petitioners also filed bills of entry. On such imports, the respondents levied additional duty at the rate of Rs. 3.50 per metric tonne or Rs. 10/- per metric tonne depending on the period when such imports were made, in terms of notification Nos. S.O. 95(E), dated 8-2-1983 and S.O. 727(E), dated 25-6-2003 in addition to the Customs duties payable under the Customs Act, 1962. The above mentioned notifications were issued under Section 6 of the Coal Mines (Conservation and Development) Act, 1974 (hereinafter to be referred to as "the Coal Mines Act"). 2.2 The case of the petitioners is that such demand and levy of additional duty was wholly unauthorized, illegal and unconstitutional. Stated in brief, the petitioners contend that under Section 6 of the Coal Mines Act, the authorities had power to collect only additional duty over and above excise duty on the excisable goods and therefore, any notification issued under Section 6 of the Coal Mines Act would not permit the customs authorities to collect any such additional duty on the imported goods. The petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Conservation and Development) Act, 1974 (28 of 1974) and in supersession of the notification of the Government of India in the erstwhile Ministry of Energy (Department of Coal) number S.O. 95(E), dated the 8th February, 1983 except as respects things done or omitted to be done before such supersession the Central Government hereby fixes, with effect on and from the 26th June, 2003 the rates specified in column (2) of the Table given below as the rates at which the duty of excise referred to in the said section shall be levied on coal of the description specified in column (1) of the said Table namely :- TABLE Description Rate of Excise duty per tonne (1) (2) Coking/non-coking coal Rs. 10.00 (Rupees ten only) 2.4 We may notice that the department has been collecting such duty under said two separate notifications. As noted in the first notification No. S.O. 95(E) dated 8-2-1983 it was provided that on the excise duty payable by the manufacturer, additional duty shall be levied on coal of the description specified in that table at the rates specified therein. For coking coal, the rate specified was Rs. 4.25 per tonne and for non-coking coal, such rate was Rs. 3.50 per tonne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. The learned counsel further submitted that in absence of any notification issued under Section 7 of the Coal Mines Act, the amount collected from the petitioners must be seen as one under mistake of law. Such a collection does not partake the character of Customs duty. The petitioners, therefore, can claim refund thereof at any point of time and at any rate within three years from the date the petitioners discovered the mistake. For this purpose, heavy reliance was placed on the provisions contained in Section 17(1) of the Limitation Act. 6. The learned counsel further submitted that the petitioners had not passed on the burden of this duty on the consumer. He submitted that coal is used for energy generation for manufacturing of cement. It is not a component and, therefore, there would be no question of passing on the burden of such additional duty on the consumer. The learned counsel submitted that during the period under consideration, the Company was running losses. For this purpose, he relied on the certificate of the Cost Accountant, which is produced on record by the petitioners. 7. In addition to the decision in the case of Central Excise & Customs, Bhubaneswar-I v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise & Customs, Bhubaneswar-I v. Tata Iron & Steel Co. Ltd. (supra) held that such additional duty on imported coal could not be levied. The Apex Court noted that Section 6 of the Coal Mines Act pertains to collection of additional duty on excise. Section 7, on the other hand, pertains to collection of additional duty as Customs duty. The Apex Court noted that in absence of any notification under Section 7 of the Coal Mines Act, no such duty could be levied on import of coal made by the importers. We may notice that both the notifications noted above and relied upon by the department for collection of such duty have been issued in exercise of powers under Section 6 of the Coal Mines Act and referred to as collection of excise duty. In that view of the matter, the entire collection of additional duty in the name of Customs duty was wholly unauthorized. Even the department dropped the demand in the order dated 30th September, 2005 passed by the Assistant Commissioner of Customs, Jamnagar. Such order, we are informed, was never challenged. In any case the decision of the Apex Court being amply clear and squarely covering the case of the petitioners, we have no hesitation in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/s. Tilokchand Motichand & Ors. v. H.B. Munshi, Commissioner of Sales Tax, Bombay & Anr., AIR 1970 SC 898, the Apex Court in the majority view expressed through Hon'ble Chief Justice Hidayatullah, held that the petitioner could not take advantage of the Supreme Court's decision in case of another litigant after a lapse of number of years. The petitioner's contention that the ground on which the statute was struck down was not within his knowledge and, therefore, he could not pursue his case before the Supreme Court, would not stand since a law will presume that he knew the exact ground of unconstitutionality. It was held that it was a duty of the petitioner to have brought the matter before the Supreme Court for consideration. It is of course true that in such decision, the petitioner had earlier questioned the levy but failed before the High Court and had, thereafter, sought refund on the ground that in another case, the Supreme Court had declared the statute under which such duty was collected as unconstitutional. 16. Quite apart from the above two significant decisions of the Constitutional Benches of the Supreme Court, the entire issue is now well settled by the later de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. He cannot also claim that the decision of the court/tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well-established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963 has no application to such a claim for refund." 17. The contention of the petitioners that, therefore, in view of Section 17(1)(c) of the Limitation Act, 1963, such refund claim made within three years from the detection of the mistake should be entertained, must be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "(a) conservation of coal and development of coal mines; (b) grant of stowing materials and other assistance for stowing operations; (c) execution of stowing and other operations for the safety in coal mines or conservations of coal; (d) prosecution of research work connected with conservation and utilisation of coal; and (e) any other purpose connected with the conservation of coal or development of coal mines, or transportation, distribution or utilisation of coal." Section 10(1) of the Coal Mines Act provides that the owner of coal mine, to whom money is disbursed under Section 9, shall open a separate account to be known as the "Coal Mine Conservation and Development Account" and shall credit to the said account all sums so disbursed. Sub-section (2) of Section 10 provides that the money standing to the credit of the Coal Mine Conservation and Development Account, shall be applied to the following purpose; (a) the furtherance of the object of this Act; (b) the acquisition of stowing or other materials needed for stowing operations in coal mines; (c) the execution of stowing and other operations in furtherance of the objects of this Act; (d) the prosecution of resea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners could not take the colour of additional duty of customs either mistakenly or illegally collected. It is a case where the duty was collected without any authority of law. Such collection of duty is not illegal or unlawful or irregularly collected Customs duty under the Customs Act, but a duty collected without authority of law and therefore opposed to Article 265 of the Constitution of India and is thus unconstitutional. In that view of the matter, the petitioners cannot be bound by the limitation prescribed in the Customs Act, 1962 for claiming refund of excess duty or duty collected illegally. The period of limitation prescribed under the Limitation Act would apply. 24. The last question that remains is with respect to unjust enrichment. The principles of unjust enrichment though have been statutorily included in Customs and Central Excise Acts, even in absence of such statutory provisions, the constitutional courts in India have been applying such principles in case of collection of indirect tax where such burden may have been passed on to the ultimate consumer. It is not necessary to refer to large number of decisions in this respect. The Apex Court in the case of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njustly enriched."
Even learned counsel for the petitioners did not seriously contend that without examining the question of unjust enrichment, the refund claims should be passed. This aspect, however, in our opinion, cannot be gone into in a writ petition at least at the first instance. Such issue must be left to the authorities to examine on the basis of the material that the petitioners may produce before them.
25. In the result, the petition is allowed in part. The collection of the duty described as additional duty of customs in purported exercise of powers under Section 7 of the Coal Mines Act, is held unlawful. The petitioners shall be entitled to refund of such duty paid only within three years immediately preceding the date of filing of the petition, which happens to be 18-8-2006. Such refund shall be granted to the petitioners with simple interest at the rate of 9% per annum from the date of payment till actual refund, however, only after ascertaining that the burden of such duty was not passed on to consumer or any other person.
26. With the above directions, the petition is disposed of. Rule is made absolute to the aforesaid extent. X X X X Extracts X X X X X X X X Extracts X X X X
|
