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TMI Blog1988 (8) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... words, the petitioner alleges that it has paid the aforesaid amount as excess duty and the petitioner is entitled to get a refund of the same. 2. On 11th October, 1982; the petitioner made an application for refund of the said amount and no order is writing was sent to the petitioner. Thereafter, it is alleged that on or about 11th May, 1983, the petitioner came to know that the petitioner's application for refund was rejected. This fact alleged to have come to the knowledge of the petitioner pursuant to oral enquiries. The petitioner filed this writ petition on or about 8th June, 1983, when a rule was directed to be issued as prayed for and an interim order was also made directing the Collector of Customs to refund the amount of Rs. 3,08,679.81 p. upon furnishing a bank guarantee by the petitioner in favour of the Collector of Customs. 3. I understand that such bank guarantee was duly furnished and the same is still subsisting in favour of the Collector of Customs. The petitioner prays that the Collector be directed to refund to the petitioner the said sum of Rs. 3,08,679.81 p. which according to the petitioner, was paid by mistake of law. 4. Be that as it may, the broad qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f circles, ovals, isoseles triangles, rectangles, hexagons, octagons or quardilaterals with only two sides parallel and the other two sides equal, and which are not hollow". 6. The item imported by the petitioner was described as stainless steel strip and sheet cuttings in length mixed sizes and thickness and it was also described as new arising 4" to 15" wide mixed 3' to 8' long and 14 to 30 SWG mixed it was contended that the goods imported were not of the category, as described in item No. 73.15(2). The said Item 73.15(2) includes the words strips, sheets and plates of stainless steel. Since the width of the materials was 4" to 15" then the same could not possibly fall in the category of 'strip' because the maximum width permitted is 500 millimetres and it has to be of rectangular section in straight strips. Whatever strips cuttings were there in the consignment the same could not come within the definition of strips, which limits the width to 500 mm. i.e., roughly 5 centimetres which in turn is equivalent to 2". Then the question arises whether the sheet cuttings imported, came within the category of 'sheets and plates'. The definition of sheets and plates, as referred to abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usual course of manufacture of rolled products. They are waste material and they do not have any uniformity in either their size i.e. length, width and thickness. 8. In the affidavit-in-opposition being the affidavit affirmed by Bhanu Bhusan Chakraborty on 16th February, 1984, the said Mr. Chakraborty dealing with the said paragraph, states in paragraph 10 as follows :- "10. With further reference to paragraph 4 of the petition I deny that the said goods are waste materials as alleged". 9. The said Bhanu Bhusan Chakraborty is not denying the fact that the cuttings are off-cuts which arise in the manufacture of rolled products, and they do not have any uniformity in either their size, i.e. length, width or thickness. This fact also appears from the description of the items imported as given in the Bills of entry. 10. This also shows that arisings and off-cuts are not intended end products but automatically arise during the manufacture of end products. This fact also is not denied. Furthermore the aforesaid documents issued by the Union of India and/or its undertakings clearly show that sheet cuttings are different from sheets and are classified as such. 11. The word cuttin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapes etc.'. The said item will include every irregular shape which does not come within item No. 1(n). 15. Item 73.15 of the First Schedule states that the alloy steel and high carbon steel should be in the form mentioned in headings 73.06/07 to 73.14. Item 73.11 is angles, shapes and sections, Items 73.12 is hoop and strip and 73.13 is sheets and plates. For the 'purpose of the assessment of the duty in case of alloy steel and high carbon steel, form of the commodity must be one of the forms as specified in the Item No. 73.06 to 73.14. So far as 73.15(2) is concerned it does not include angles, shapes and sections. 16. Mr. Roy Chowdhury relied on the judgment of the Division Bench of the Delhi High Court in the case of Super Traders and another v. Union of India and others reported in 1983 (12) E.LT. 258 (E.E.L. Delhi). In that case the item imported was stainless steel circle. In that case it was contended, by the writ petitioner that a circle did not come within the definition of sheets and plates. There the Division Bench of the Delhi High Court consisting of Mr. Justice Rajinder Sachar and Mr. Justice R.N. Agarwal held that the stainless steel circle really means sheet cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in which the Court was competent to interfere. In other words, if there were two constructions in which an entry could reasonably be and one of them in favour of Revenue was adopted, the Court had no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt. 18. Mr. Roy Chowdhury also relied on the judgment of the Supreme Court in the case of Collector of Customs, Madras v. Ganga Shetty Reported in AIR 1963 S.C. 1319, in support of the aforesaid proposition. The conclusion or decision of the Customs Authorities could not in that case be characterised as perverse or malafide. There a quantity of oats was imported and the same were described as 'Standard food oats'. Oats could come in the category of grain as well as in the category of feed and the Supreme Court held that it is primarily for the Import Control Authorities to determine the head of entry under which any particular commodity fell, but that if in doing so, those authorities adopted a construction which no reasonable person could come i.e. if the construction was perverse, then it was a case in which the Court was competent to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by consenting to restore little sums, taken in little transactions, from little persons, to whom they belong". 21. The petitioner also relied on the judgment in the case of Dulichand Shreelal v. Collector of Central Excise and Others reported in 1986 (26) E.L.T. 298, wherein it was held that the limitation in a case of payment of duty under mistake is to be counted from the date the petitioner came to know about the mistake. The relevant portion of the said judgment is as follows :- "The next contention which is required to be considered is Assuming that the period of limitation would be applicable, the question is whether the limitation as prescribed under the Act or the limitation as prescribed under the general law would be applicable. When the duty was imposed by the respondents on the product manufactured by the petitioner under Tariff Item No. 68, it was not known to the respondents on the product manufactured by the petitioner under Tariff Item No. 68, it was not known to the respondents that there was an exemption notification which entitled the petitioner to get exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en mistake or otherwise. The ground on which refund was rejected on the ground that the petitioner was not entitled to refund on merits. The extraordinary remedy under Article 226 of the Constitution is available on facts of this case and the question of relegating the petitioner to civil suit does not arise." 23. In the instant case the petitioner came to know about the mistake when the Customs Tariff Amendment Bill, 1982 came into force from 15th of April, 1982 and even if the limitation of six months is to be counted then also the application for refund was made on the 11th of October, 1982 and hence it cannot be said that the claim made by the petitioner is barred by limitation. In the case of payments made under mistake it cannot be said that the period of limitation will start running even before the mistake is discovered. The payments of duties were mostly made between 10th of March, 1980 to 3rd April, 1980 excepting the first payment which was made on 14th of July, 1979. According to the petitioner, the mistake was discovered only from the objects and reasons of the Amendment Bill of 1982. In my opinion, therefore, the claim of the petitioner was not barred by limitation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden to his purchaser and he himself has not suffered any loss or prejudice in fact. Merely because the assessee has paid the money, that by itself is no ground for directing payment to the assessee, if in fact the assessee has not paid out of his own pocket, but ultimately passed it ort to his purchaser. In the instant case, it is not the case of the assessee that they have not passed the burden to its purchaser. Accordingly, the appellants are directed to refund the amount of Excise duty collected by them from the respondents in the manner as indicated, namely that the sums are to be paid to the Receiver/Special Officer appointed by the Court for repayment to the purchasers, in accordance with the procedure as detailed in the Court Order." 26. So far as the customs duty is concerned it cannot be said that it is generally passed on to the buyer. It is nowhere alleged in the affidavit in opposition that the petitioner realised or was entitled to realise from its customers the customs duty paid by him as such. The petitioner can sell its commodity on the basis of the ruling market price for the same. It may make profit or may incur loss. Unless the sale is on the basis of an ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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