9911796707
TMI Blog1987 (6) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... ppendix 2 of the said import policy. 3. Customs duty was leviable on such Photo-Composing/Type-Setting Machines and ancillaries thereof including Display Screen, Type-Setting Unit and Key Board as and at the rates prescribed therefor, at the relevant time, under Heading No. 84.34 of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as "the said Act") read with Notification Nos. 114/80-Cus. and 110/84-Cus. both issued by the Central Government in exercise of powers conferred upon it by Section 25 of the Customs Act, 1962. 4. The petitioner in or about March 1984 entered into a contract with one Messrs International Incorporated, U.S.A. for import of 2 Photo-Composing Machines equipped with Display, Screens, English/Devnagri Key-Board, Type-Setting Unit, with standard equipment and 4 VDI Off-Line Key Boards c.i.f. Calcutta. 5. Thereupon the petitioner duly opened an irrevocable letter of credit in favour of the foreign seller, whereupon the foreign seller air-freighted the aforesaid goods, c.i.f. Calcutta. Upon the arrival of the said goods at the Airport in Calcutta, the petitioner in or about August/ September, 1984 filed Bill of Entry for home consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner in terms of the said order dated May 15, 1985 passed by the said Collector. 11. In the meantime the petitioner came to know from the Customs, Excise and Gold Control (Appellate) Tribunal, New Delhi that an appeal being Civil Appeal No. 1482 of 1985-B-2 had been filed by the respondent No. 1 before the said Tribunal against the said order dated May 15, 1985 passed by the said Collector. In or about March 1986 the petitioner duly filed its opposition to the said appeal petition before the Tribunal. 12. Although the said appeal was filed before the Tribunal against the said order dated May 15, 1985 passed by the said Collector, no stay of the operation of the said order dated May 15, 1985 passed by the said Appellate Collector has been granted by the Tribunal. 13. Under the aforesaid circumstances the petitioner has asked for refund of the said sum of Rs. 6,04,733.47 P. with interest. 14. An affidavit has been filed on behalf of the respondents. The grounds taken are as follows : (a) The no writ lies solely for the reliefs claimed in the writ application. The Courts in India have categorically laid down that an application claiming only refund is not maintainable u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.N. Bajoria, learned Counsel appearing for the petitioner that the petitioner is entitled to refund as the order dated 15th May, 1985 has not been stayed by the Tribunal. Mere filing of appeal cannot prevent the petitioner from getting the refund nor does the filing of the appeal operate as stay. He has submitted that there is no provision which entitles the respondents not to give effect to the order of the Appellate Collector, simply because the appeal is pending against such order. He has also submitted that the grounds taken in the affidavit have no substance at all. 17. I have considered the rival contentions. It is now well Settled that if any amount is collected illegally and without authority of law, the Writ Court can direct the refund of the amount so collected. In this case the Appellate Collector held that no duty can be levied on the subject goods. Accordingly the collection of duty on the said goods was unauthorised. The petitioner was, therefore, entitled to the refund and since the refund has been withheld, without there being any order of the Competent Court or Tribunal staying the operation of the order allowing refund, the petitioner has moved this Court under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rules powers have not been expressly conferred upon the Appellate Tribunal to stay proceeding relating to the recovery of penalty or tax due from an assessee. The Supreme Court held as follows : "The right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the Appellate Tribunal. Indeed, the Tribunal had been given very wide powers under Section 254(1), for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal. If the Income Tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the Appellate Tribunal is entirely helpless in the matter of stay of recovery, the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside. It is difficult to conceive that the Legislature should have left the entire matter to the administrative authorities to make such orders as they choose to pass in exercise of unfettered discretion. The assesses, as has been pointed out before has no right to even move an application when an appeal is pending before the Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory." 23. Sections 129B and 129C(6) of the Customs Act, 1962 are similar to Sections 254(1) and 255(5) of the Income Tax Act, 1961 which were considered by the Supreme Court in the said decision. 24. Section 129E of the Customs Act provides that where in an appeal under the Customs Act, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the Customs authority or any penalty levied under the Customs Act, person desirous of appealing against such decision or order, shall pending the appeal, deposit with the proper officer duty demanded or penalty levied. But the Tribunal may dispense with such deposit subject to such condition as it may deem fit to impose so as to safeguard the interest of revenue. In other words, the Tribunal has been given specific power by the Customs Act only to dispense with payment of duty or penalty. Implication of this provision is that in the event the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore no refund can be issued, cannot be accepted. Mere filing of an appeal cannot operate as stay of the order appealed from. If this contention is accepted the Revenue will suffer more than the assessee. If the assessee cannot claim refund during the pendency of the appeal without there being any stay from the Appellate Tribunal, the revenue cannot also on the same principle oppose any application of the assessee for stay of the realisation of the demand disputed in appeal. In my view the contention raised on behalf of the revenue has no substance. An assessee is entitled to the refund on the basis of the order of the Appellate Collector, unless such order is stayed by the Appellate Tribunal. Admittedly in this case there is no stay nor was any stay asked for by the Revenue. The respondents acted illegally in withholding the refund on the sole ground that an appeal has been preferred by the Department against such order and the appeal is pending. I am, therefore, of the view that the petitioner shall be allowed the refund on the basis of the order of the Appellate Collector as no stay has been obtained by the Revenue. 27. The other contention which has been raised is as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
