9911796707
TMI Blog1978 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay and at the time of clearance, the Assistant Collector (Principal Appraiser) Customs, Bombay levied duties as under, Customs Duty 61/2% Countervailing Duty ₹ 396 per M.T. 3. The petitioner paid the above duties. The petitioner has no grievance so far as the payment of customs duty at 16 ½ % on the above consignment is concerned but according to the petitioner, the countervailing duty at ₹ 396 per M.T. was levied and collected by the Assistant Collector (Principal Appraiser) Customs, Bombay on a mistaken impression that it was leviable under Section 2A of the Indian Tariff Act, 1936 (hereinafter to be referred to as 'the Act') in respect of these goods and this being a bilateral mistake, neither the department nor the petitioner disputed this levy. The petitioner has submitted Bill of Entry dated July 7, 1965 with the writ petition and that has been marked Ex. 1. The petitioner further states that the Collector of Customs issued a public Notice No. 170/67, dated October 15, 1967 containing the decision of the Central Board of Excise and Customs with regard to the levy of countervailing duty on Electrolytic Grade Aluminium Wire Rods and clarified that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s". This order was received at Pipalia Kalan, District Pali, Rajasthan, on February 3, 1968. After the receipt of the order of Principal Appraiser of Customs, the petitioner preferred an appeal against that order before the Appellate Collector of Customs on April 2, 1968. The Appellate Collector, Customs, Bombay (respondent No. 2) rejected the appeal holding that the provisions of S. 27(1) of the Customs Act are mandatory and could not be relaxed and in this view of the matter, he confirmed the order of the Principal Appraiser of Customs and rejected the appeal on April 26, 1968. The copy of the order of the Appellate Collector, Customs, Bombay has been placed on record by the petitioner and has been marked Ex. 3. The copy of the order was forwarded for information to the petitioner at Pipalia Kalan via Beawar, Rajasthan, which was received on May 4, 1968. Thereafter, the petitioner filed a revision application against the order of the Appellate Collector. Customs, Bombay before the Joint Secretary to the Government, Ministry of Finance, Department of Revenue, New Delhi. By a consolidated order dated November 28, 1969 reproduced in Schedule A appended to the writ petition, the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Principal Appraiser of Customs, Bombay dated January 30, 1968 (Ex. 2), (ii) the Appellate Collector of Customs, dated April 4, 1968 (Ex. 3) and (iii) the Commissioner, (Revision Applications), Government of India, dated November 28, 1969 (reproduced in Schedule `A') be quashed and the respondents be ordered to allow the claim of the petitioner. In the alternative, it has been prayed that respondent No. 3 be directed to determine the question of limitation under Section 27 of the Customs Act and thereafter, to decide the revision application preferred by the petitioner afresh. This writ petition as presented in this Court on July 14, 1970. 6. The respondents have contested this writ petition by filing a reply to it, the copy of which was delivered to the learned Counsel for the petitioner on January 10, 1978. It was denied that any countervailing duty, ₹ 396/- per M.T. was charged from the petitioner. The following customs duty was levied by the Assistant Collector on the consignment of Electrolytic Grade Aluminium Wire consisting of 9.165 M.Ts. :- 161 ½ % (15%+10% ad valorem) 10% regulatory duty and ₹ 396 (Rs. 360+10% of ₹ 360 i.e. ₹ 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to the Customs Department at Bombay in regard to which, he preferred the refund claim on July 7,1965. The present writ petition was submitted on July 14, 1970 (the amended writ petition was filed on January 11, 1971) when the limitation for claiming the refund under the ordinary law of limitation had expired. Thus, on this ground also, the writ petition deserves to be dismissed; (3) that the petitioner has challenged the vires of the provisions of Section 27 of the Customs Act. Since the Act is a central law and under the amended provisions of the Constitution, it is only the Supreme Court which is empowered to hear and decide such matters, therefore, the writ petition for this reason is not maintainable in this Court; and (4) that the petitioner had an alternative remedy of suit for claiming the refund. If he is aggrieved by the decisions of the Customs Authorities, i e should have pursued his remedy by instituting a suit. It was, therefore, prayed that the writ petition should be dismissed. 7. Mr. R.N. Munshi, learned Counsel for the respondents, in the first instance, argued that no cause of action on any count in this case arose within the territory of Rajasthan and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority even though it may not be within its territories simply because the cause of action has arisen within those territories. This decision was also rendered prior to the Constitution (Fifteenth Amendment) Act, 1963, Mr. Munshi also supported the preliminary objection by referring to the judgment of the learned Single Judge of Punjab and Haryana High Court in M/s. Hukam Chand Jagan Nath v. Union of India and Others, ILR (1968) 2 P & H 456, wherein a question arose as to whether an order of confiscation made by the Collector, Howrah can be challenged in the High Court of Punjab and Haryana. The learned Single Judge took the view that the action of the Collector, Howrah cannot be challenged in the proceedings before the High Court of Punjab and Haryana, as, according to him, if the goods are seized at Howrah and were taken possession of by the Collector, the export of foodgrains alone having taken place from the State of Haryana, the Punjab and Haryana High Court had no jurisdiction to quash the orders of confiscation made by the Collector of Howrah. Mr. Munshi further submitted that the matter came to be considered by a Division Bench of the Delhi High Court in Shiv Shankar Lal Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W 513, wherein while considering the provisions of Section 21, C.P.C. it was held that the objection regarding jurisdiction should be taken at the earliest possible opportunity and if there is no consequent failure of justice, mere taking of objection is inconsequential. Our attention was drawn to Surjit Singh Atwal v. Union of India, AIR 1965 Cal. 181, in which it was held that invalid contract cannot be relied upon as constituting part of cause of action. Reference was also made by Mr. Parakh to Shree Biharji Mills Ltd. v. Union of India through the General Manager etc, AIR 1965 Patna 53, where the provisions of Section 20, Civil Procedure Code, came up for consideration. It was held therein that the cause of action in that case arose in the district S and no part of cause of action with respect to the stolen bags and bags from which certain quantities were pilfered arose within the jurisdiction of the court at P. In these circumstances, the learned Judges concluded that the court at P had no jurisdiction to try the suit. The learned Single Judge of the Allahabad High Court in the Purtabpore Co. Ltd. v. Cane Commissioner, Bihar, AIR 1969 Allahabad 105, considered the expression, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mode. The learned Single Judge was of the opinion that in that case there was no reason as to why the plaintiff could not invoke the applicability of the doctrine of part of the cause of action. Mr. Parakh submitted that Samrendra Nath Roy's case, (1968) 71 Cal. W.N. 592 was overRuled on appeal in F.M.A. 497 and 363 of 1967 by a Bench decision dated April 30, 1970 of the Calcutta High Court. It was held in Serajuddin & Co. v. The State of Orissa and Others, AIR 1971 Cal. 414, that where the orders as to grant and revocation of a mining lease were served within the territorial jurisdiction of a High Court and a part of cause of action arose within its jurisdiction that High Court would have writ jurisdiction with respect to the order of revocation even though the authority revoking the lease and the authority communicating revocation were beyond the jurisdiction of the High Court Mr. Parakh on the basis of the decision of the learned Single Judge of the Delhi High Court reported in M/s. S.S. Light Rly. Co. Ltd. v. The Industrial Tribunal, AIR 1971 Delhi 69, also argued that when the orders under challenge were served on the petitioner at Pipalia Kalan, in Rajasthan, a part of cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered by their Lordships of the Supreme Court in Nasiruddin v. State Transport Appellate Tribunal etc., AIR 1976 S.C. 331, while considering paras 7 and 14 of the Union Provinces High Court (Amalgamation) Order, 1948. Para 36 of the judgment of their Lordships reads as under,- ...."the expression `cause of action' in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order of the revisional order which came to be passed at Lucknow then Lucknow would have jurisdiction though the original order was passed at a place outside the areas in Oudh. It may be that the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression `cause of action' is well-known. If the cause of action arises wholly or in part at a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within the specified Oudh areas it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead office is at Pipalia Kalan in Rajasthan, this court has jurisdiction to entertain and decide the writ petition. In Union of India v. Bhagwan Industries Ltd., AIR 1957 All. 799, it was held that where the deposit is made in advance, there is evidently an implied agreement that the amount deposited would be refundable, if not appropriated, and the depositee becomes a debtor for the purpose of repayment of the money to the person entitled to get back the deposit and as such, under the circumstances, the depositee is liable to made the refund at the place where the depositer resides. Reliance was also placed upon Soniram Jeetmull v. R.D. Tata and Company Ltd., AIR 1927 P.C. 156, Firm Bilasrai Hannalal v. Firm Purshottam Dass Sanwaldass and Another, AIR 1962 Raj. 247. Balloram and Another v. Firm Seth Uttamchand Bishamdas, ILR (1960) 10 Raj. 1123 and Ram Bhagat Somani v. Kanhaiyalal Jainarain Tambi, 1973 RLW 142. We may, in passing observe here that Mr. Munshi, learned Counsel for the respondents submitted that the common law principle that debtor should find the creditor does not apply in the facts and circumstances of this case as the Notification No. GSR..., dated February 9, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n motion and the impact of that motion is felt by the petitioners within the teritorial limits of this State. We have therefore no hesitation in holding that a part of the cause of action has arisen in the State of Tamil Nadu." 13. A special Bench of the Bombay High Court in Gopal Vinayak Godse v. The Union of India and Others, AIR 1971 Bombay 56, also examined the expression 'cause of action wholly or in part arises' used in Article 226 (1-A) of the Constitution. In that case, the order of forefeiture was passed by the Delhi Administration but the learned Judges were of the view that it could make no difference because under Cl. (1A) which, was inserted in Article 226 by Secion 8 of the Constitution (Fifteenth Amendment) Act, 1963, the poser conferred on the High Court by Cl. (1) can be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or m part, arises for the exercise of such power notwithstanding that the seat of the Government to which a direction, order or writ is to be issued is not within those territories. In that case, the copies of the book were seized in Poona in pursuance of the order of fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneous and, therefore, the petitioners could claim reassessment of the entire consignments against contracts under Item 72(18) provided the consignments were 'mining machineries'. Being aggrieved, the petitioners filed writ petitions under Article 226 of the Constitution for (a) issuance of a writ in the nature of mandamus, (b) issuance of a writ of certiorati for quashing those orders and (c) issuance of the writ of mandamus directing the respondents to grant refund of ₹ 26,85,460/- realised in excess from petitioner No. 1 and, if necessary, for ascertainment of the amount of refund by the reassessment in accordance with law. A preliminary objection was raised about the lack of jurisdiction of Orissa High Court on the ground that since duty was assessed at Calcutta, contracts were registered at Calcutta, orders of the Customs authorities were passed at Calcutta and Central Government order was passed at New Delhi, no part of cause of action arose within the jurisdiction of that Court. While dealing with this preliminary objection about jurisdiction of the Orissa High Court to hear the writ petition, the learned Judges were of the view that as the application seek to quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the cause of action arose at Pipalian Kalan in Rajasthan which is within the local limits of the jurisdiction of this Court and therefore, this Court has jurisdiction to entertain this writ petition. The first preliminary objection raised by the learned Counsel for the respondents regarding the lack of jurisdiction of this Court to entertain and decide the writ petition is, therefore, overruled. 14. For the purpose of appreciating the other objections raised by the learned Counsel for the respondents, it will be useful to examine the merits of the case at this juncture. Mr. Munshi, learned Counsel for the respondents submitted that the levy of ₹ 396/- per M.T. does not represent any countervailing duty but was, in fact part of the basic customs duty in terms of the Notification No. 30-Cus., dated March 10, 1962 as amended by Notification No. 126-Cus,, read with Notification No. 144-Cus., dated August 31, 1965 and Notification No. 105-Cus., dated June 6, 1966. The above mentioned notifications relied upon by the learned Counsel for the respondents are extraeted below : "Notification No. 30-Cus., dated 10-3-1962 :- In exercise of the powers conferred by Section 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Act, 1934 (32 of 1934) entry in column (3) of the said Table :- TABLE S. No. Description of Goods Rate of duty 1. Electrolytic aluminium rods (extruded), electrolytic aluminium wire bard, electrolytic aluminium billets, or electrolytic aluminium ingots. 35 per cent ad valorem 2. Electrolytic aluminium rods (other than extruded) 35 per cent ad valorem plus ₹ 360 P.T." "Notification No. 105-Cus., dated June 6, 1966 :- GSR 875. - In exercise of the: powers.....the Central Government being satisfied that it is necessary in the public interest so to do, hereby directs that in the notifications of the Government of India, Ministry of Finance (Revenue Divn.) or in the Ministry of Finance (Department of Revenue) or in the Ministry of Finance as the case may be specified in column (2) of the Table annexed hereto and relating to the articles specified in column (3) thereon, for the entries specified in columns (4) and (5) of the said Table, the entries specified in the corresponding entries in columns (6) and (7) of the said Table shall be substituted :-- TABLE S. No. Customs Notificati-on & date Name of Articles Amendment For the entry Substitute the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, on July 7, 1965, Section 2A of the Act was in force. Sub-Section (1) thereof provide as under,- "Any article which is imported into India shall be liable to customs duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India, and if such excise duty on a like article is leviable at any percentage of its value, the customs duty to which imported article shall be so liable shall be calculated at that percentage of the value of that imported article." This additional duty which is levied by Section 2A of the Act is also known as the countervailing duty. Sub-section (2) of Section 2A of the Act provides for its own measure of computing the countervailing duty payable by a person who imports. This duty is equal to excise duty for the time being leviable on a like article if produced or manufactured in India. What is the meaning of the expression "the excise duty for the time being leviable on a like aricle if produced or manufactured in India" is contained in the explanation to sub-Section (1) of Section 2A of the Act in the following terms,- "Explanation. - In this Section, the expression 'the excise duty for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Schedule to the Excise Act and it mentions the following articles.-- "Wire bars, wire rods and casting, not otherwise specified." The excise duty was levied upon them at the rate mentioned against the said sub-Items. Therefore, from 1960 until the Finance Act, 1969 came into force, it is clear that the Legislature did not levy any excise duty upon the goods in question. Hence it is only with effect from the date on which the Finance Act, 1969 came into force that the goods of the kind mentioned in the Bill of Entry (Ex. 1) dated July 7, 1965, produced and manufactured in India became liable to payment of Excise Duty and imported goods of all kinds also became liable to payment of additional duty (countervailing duty) under Section 2A of the Act. Though Section 2A of the Act was there the importers of the Goods in question were not liable to pay any countervailing duty because there was no excise duty leviable on the goods of that kind manufactured or produced in India under the Excise Act. It is, therefore, clear that during the period when given question were imported by the petitioner in India, there was no countervailing duty leviable on them. This was also realised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sea Customs Act of 1878 was in vogue. Notification No 30 of 1962, dated March 10, 1962 was issued under that Act by the Government of India granting exemption on electrolytic aluminium ingots when imported into India or the State of Pondicherry for the manufacture of aluminium conductors steel reinforced or all aluminium conductors from so much of the duty of customs leviable thereon as is in excess of the duty of 15% ad valorem plus the Excise duty for the time being leviable on the like Item if produced or manufactured in India. This Notification has already been reproduced above. From this Notification, it is clear beyond all manner of doubt that it exempted certain aluminium goods from the customs duty leviable thereon as was in excess of 15% ad valorem and also from the Excise duty for the time being leviable on them. Notification No. 125 of 1965 issued by the Central Government granted exemption to certain aluminium goods from the customs duty as was in excess of 35% ad valorem but did not grant any exemption in respect of countervailing duty computed in terms of excise duty if the latter was leviable on goods manufactured or produced in India. On August 31, 1965, Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n demanded on the ground of short levy are entitled to a refund of the same." Ismail, J. of the Madras High Court in writ petition No. 1575 of 1967 agreed with the view taken by Venkatdri, J. and held that the surcharge is payable only at 15% ad valorem and not on the sum of ₹ 380/- per tonne which is nothing other than countervailing duty payable by the petitioner under Section 2A of the Tariff Act. A similar view was taken by a Division Bench of the Gujarat High Court in Special Civil Applications Nos. 909 to 911 of 1971 M/s. Prem Conductors Pvt. Ltd. v. The Assistant Collector of Customs, decided on 17/18 March, 1972 wherein it was held that the amount recovered by the Revenue from the petitioners, a refund of which was sought in the writ petitions, cannot be justified. This view was followed by Ram, J. of the Madras High Court in Premraj Ganpatra and Co. v. The Assistant Collector of Customs, Madras decided on September 14, 1972. We respectfully adopt the reasoning given by the Madras and the Gujarat High Courts in the decisions referred to above and hold that the countervailing duty recovered from the petitioner is not justified as no such duty was leviable in law. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 25 of the Customs Act, this excess levy is ultra vires the Customs Act. In this connection, we may refer to M/s. Prem Conductors Pvt. Ltd.'s case (supra) in which it was observed, - "If such an excess amount has been levied and collected, and if it is ultra vires the Act, no provisions of the Statute can be marshalled to the aid of the revenue for the purpose of negativing the claim of the petitioners and though the petitioners purported to make an application for refund to the Assistant Collector of Customs and then having been aggrieved by the order they went in appeal and revision to the higher authorities, what they really did was to move the appropriate authorities one after another to get back what was recovered from them without any authority of law. These requests of the petitioner having failed, the petitioner filed this petition here. Since the orders of assessment in any view of the matter were ultra vires and de hors the Statute, in our opinion, the provisions of Statute were not attracted to them. The levy and collection of countervailing duty could not be said to have been made in pursuance of an order of assessment made by an officer of customs......&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be clearly barred by time." 22. Mr. Munshi further submitted that as per submissions made in the writ petition, the petitioner became aware of the levy of countervailing duty when the Collector of Customs issued a Public Notice No. 170/67, dated October 15, 1967 containing the decision of the Central Board of Excise and Customs with regard to the levy of countervailing duty of Electrolytic Grade Aluminium Wire Rods and clarified that the Electrolytic Grade Aluminium Wire Rods other than extruded are not covered by any of the Items in the Central Excise Tariff and as such, they are not of import leviable to additional duty under Section 2A of the Act and so the petitioner should have filed writ at the earliest soon after he became aware of the aforesaid public notice but instead, he preferred claim petition for the refund specifically mentioning therein that Section 27 of the Customs Act does not apply to his case. He, therefore, urged that as the present writ petition was submitted on July 14, 1970, it is belated and the petitioner is guilty of laches and lapses and, therefore, it is not entitled to any relief. Our attention was drawn to A.V. Vanketaswarn, Collector of Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes to disturb such exercise unless the ground is too untenable. To awaken this Court's special power gross injustice and grievous departure from well-established criteria in this jurisdiction, have to be made out. In the present case, long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural. The reason for the inaction is stated to be illusory expectation of suo motu modification of assessment orders on representation by the party. The High Court has examined and dismissed the plea and consequently refused relief. We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly......" 23. On the other hand, Mr. Parakh, learned Counsel for the petitioner contended that the petitioner is not guilty of laches and delay as he was pursuing the remedies which are provided by the Customs Act and he filed the writ petitions within reasonable time after the rejection of the revision application by the Commissioner (Revision Application), Government of India, New Delhi, as the revisional order reproduced in Schedule A was passed on November 28, 1969. He fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in law for the plaintiff's use. Article 62 of the Limitation Act, 1908 was applied. This matter was also considered in Mubarak Hussain's case (supra). There again, Article 62 was applied. Article 96 of the Limitation Act, 1908 was considered in that case. It was found that the payments made by the plaintiff-appellant from January 26, 1950 up to March 31, 1951 were payment which the defendant State had no right to receive in law and in these circumstances, the question arose whether the plaintiff-appellant could avoid the application of Article 62 of the Limitation Act, 1908 or not. The learned Judges agreed with the view expressed in Jain Brother and Company case (supra) and held that the suit was rightly held to have been governed by Article 62 of the Limitation Act, 1908. The petitioner made the payment of the countervailing duty at ₹ 396/- per M.T., amounting to ₹ 3629.34 P.L. on July 7, 1965. The mistake that no countervailing duty could be levied and collected became known to it when the public notice dated October 15, 1967 came to its knowledge, and thereafter it preferred claim on December 25, 1967 before the Principal Appraiser, Customs, Bombay. This claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey paid under a mistake of law. Section 17(1) (c) of the Limitation Act provides that in the case of a suit from the consequences of mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. Article 24 of the Limitation Act provides the limitation for three years for money payable by the defendant to the plaintiff for money received and by defendant for the plaintiff's use and period of limitation commences when the money is received by the defendant. Article 24 is the same as that of Article 62 of the Limitation Act, 1908. Article 24 of the Limitation Act has to be read with S. 17 of the Limitation Act and the result would be the same as that provided in the Limitation Act, 1908 in which Article 96 was there which applied to a suit for recovery of money paid under a mistake of law. We may add that Article 96 was not retained in the Limitation Act, for, a provision was made under S. 17. 24. The petitioner acquired knowledge about the wrong levy and collection of the countervailing duty paid by it when the clarification was published in the Public Notice No. 70 of 1967 on Octob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution. "..... Learned Counsel is right in his submission that the provision of the Limitation act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which dealy in seeking remedy under Article 226 can be measured. This Court may consider the dealy unreasobable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known....." 25. The same view was taken by their Lordships in State of Kerala's case, (1965) S.T.C. 689 and Gill & Co. Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 to 3, that is, orders Ex. 2, Ex. 3 and the one reproduced in Schedule A and no specific prayer for quashing the Bill of Entry (Ex. 1) which contains the assessment of the duty levied has been made and in the absence of that no writ or direction as prayed by the petitioner can be issued. His contention is that the assessment contained in the Bill of Entry (Ex. 1) will hold good for all purposes and, therefore, in the absence of the prayer for setting aside it, no relief for quashing the three impugned orders can be granted. We regret that this contention of the learned Counsel for the respondents cannot be accepted. The petitioner preferred the claim for refunding the amount on December 25, 1967. This refund claim was rejected on January 30, 1968 vide Ex. 2 by the Principal Appraiser, Customs, Bombay. Thereafter, an appeal was filed and the Appellate Collector, vice his order Ex. 3 dated April 26, 1968 rejected the appeal holding that the provisions of Section 27 of the Customs Act are mandatory and hence the order of the Principal Appraiser, Customs, was correct in law. Against the appellate order, a revision was filed and the Commissioner (Revision Applications) rejected the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted, pointing out that all such cases had been those in which the petitioners challenged the validity of the assessment and prayed for consequential relief for the return of the tax illegally collected. The Supreme Court observed that they had not been referred to any case in which the courts were moved by a petition under Article 226 of the Constitution simply for the purpose of obtaining refund of money due from the State on account of its having made illegal exactions, that they did not find any good reason to extend the principle and that they would hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right. In Mohan Meakin's case (supra), the petitioner challenged the recovery of adjustment of the damages claimed by the respondents out of the amounts due to the petitioner under other pending bills and it was held that the respondents had no power or right to so recover or adjust under the contract. In these facts, it was observed by the Full Bench that the further relief sought by the petitioner by way of payment of the amount due under the pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na case (supra) referred to Commissioner of Police Bombay v. Gordhandas Bhanji, AIR 1952 S.C. 16 wherein it has been held that a writ could be issued for refund of money even if the petitioner's right to refund did not arise under any statutory law but arose under any law. In the present case, the main relief is for quashing the three impugned orders and the consequential relief is for a direction for refund. In Burmah Construction Company v. The State of Orissa and Others, AIR 1962 S.C. 1320, an application was filed before the Orissa Sales High Court amongst others declaring the provisions of Section 14 of the Orissa Sales Tax Act as ultra vires and for quashing the assessment made by the authorities which resulted in illegal realisation or taxas an ancillary relief, the petitioner prayed for direction to the State of Orissa to refund the illegally collected amount of Sales Tax. The writ petition was allowed by the Orissa High Court and a direction to refund the collected tax was also made subject to the Rule of limitation mentioned in Section 4 of the Orissa Sales Tax Act. The decision was affirmed by the Supreme Court and it was held that the petitioner's application for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering the repayment of money realised by the Government without the authority of law. As held by us above, the directions for refund of the amount realised by the petitioners is a consequential relief and while quashing the orders Ex. 2, Ex. 3 and that of the Commissioner (Revision Applications), a direction for refund of the amount illegally realised can be given. Such directions were made in the Madhya Pradesh case (supra) and the Gujarat and Madras cases (supra). The Madhya Pradesh, Gujarat and Madras High Courts in the aforementioned cases, followed State of M.P. v. Bhailal Bhai (supra). We, therefore, hold that the consequential relief for the refund of the illegally collected amount should be granted to the petitioner. 31. On consideration of the authorities referred to above and the circumstances of the case before us, we have no hesitation in holding that these are not the cases in which it should be insisted that the petitioner should seek the relief of refund of the amount paid by it by instituting the suits. We are, therefore, clearly of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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