9911796707
TMI Blog1985 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... m Marmagoa Harbour eight consignments of 1,56,421 metric tonnes of Goan iron ore by certain steamers. The relevant shipping bills were presented to the Customs authorities at Marmagoa in respect of these consignments. Major part of the iron ore fines allowed in each of the shipment was authorised by the Directorate Mines, Government of Goa who had issued permits authorising export of said iron ore fines. The case of the petitioners is that the description of these goods in the shipping bills was made as Goan iron ore in accordance with the description given in the said contract. However, since Customs authorities at Margao, Goa insisted they also added the word 'Lumpy' in the description of the goods. The duty paid by the petitioners in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract between the petitioners and the Japanese company and they comprised of certain quantities of iron ore fines. Since the petitioners had produced a certificate of a recognised chemical analyst, the report should have been accepted and duty on iron ore fines and not on Lumpy iron ore should have been charged in respect of the quantity of iron ore fines found. Reference was also made to the judgment of the Bombay High Court in Gangadhar Narsingdas v. A.C. Marlines ors.- C.W. 1220/74, decided on 4-10-79 to show that the Customs authorities themselves have been accepting the analysis reports given by Italab Limited. It is further submitted that (though) respondent No. 1 had observed that the shipment included a percentage of iron o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in a question of fact while deciding a writ under Article 226 of the Constitution of India. 4. While dealing with a writ under Article 226 of the Constitution of India, this Court is not sitting in appeal over the decision of the Customs authorities and does not interfere in disputed questions of fact but it appears from the orders of respondents Nos. 1, 2 and 3 that no attempt was made to ascertain the real nature and character of the goods before the application for refund was rejected. If the Customs authorities have realised the duty in contravention of law without application of mind this Court is fully competent to allow the refund of excess amount of duty under Article 226 of the Constitution of India. 5. The duty levied under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very nature of things there must be certain amount of fines associated with export of Lumpy iron ore. The respondent No. 1 did not accept the certificate of analysis given by Italab Limited on the ground that it is not known what method was adopted in obtaining the representative sample. It is stated in the petition that the goods in question were inspected at the time of export by Italab Limited in accordance with the procedure and instructions laid down by respondent No. 1 and in accordance with the export of Minerals Ores-Group (I) (Inspection) Rules, 1965. The Italab Limited's certificate annexed along with the petition also clearly shows the methods adopted while taking the sample and doing the analysis. From the judgment of the Bomb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lumpy iron ore. There is no discussion, in any of the three impugned orders regarding the normal practice followed by the trade. No counter-affidavit is filed and there is also no denial by the respondents to the averments made by the petitioners in the petition regarding the practice normally followed. There is ample material on record to show that the goods exported contained iron ore fines. The analysis at the time of loading and destination also shows that the goods the petitioners actually exported contained iron ore fines. There is a power under the Customs Act to make provisional assessment and this practice was agreed upon. 9. The writ petition, therefore, succeeds and is allowed. The orders, dated 7-7-1967, 27-4-1968 and 20-11-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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