9911796707
TMI Blog1991 (11) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of Customs duty under Tariff Item No. 28.01/58(1) as an inorganic chemical compound not elsewhere specified as per the provision contained in the Customs Act, 1962 read with Customs Tariff Act, 1975, petitioner paid the duty as assessed. When a second consignment of the same substance was received by the petitioner, the Customs authorities assessed duty under Tariff Item 29.01/45(1) and collected the dues correctly. On such assessment, the petitioner realised the mistake in paying the excess duty in relation to the earlier consignment. Immediately thereafter i.e. within two weeks from Ext. P2 the second of assessment Ext. P3 application was filed claiming refund of Rs. 44,766.07. That application has been rejected on the sole groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conceded that particular had to pay an additional sum of Rs. 44,766.07. According to the respondents the amount thus paid should have been claimed within six months from the date of payment of duty as provided by S. 27(1) of the Act. For a proper understanding of that provision, I read the same. "Any person claiming refund of any duty paid by him in pursuance of an order of assessment made by an officer of Customs lower in rank than an Assistant Collector of Customs may make an application for refund of such duty to the Assistant Collector of Customs - (a) in the case of any import made by any individual for his personal use or by Government or by any educational research or charitable institution or hospital before the expiry of one ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be held that duty paid under mistake of law was duty recovered without authority of law and jurisdiction. The claim for refund in such cases cannot be governed by the law of Limitation Act out in the Customs Act. The refund application in the instant case was rejected on the sole ground that it was filed beyond six months from the date of payment of the duty and therefore could not be entertained under S. 27(1) of the Act. In the case of duty paid by the petitioner under mistake of law, the period of limitation set out in S. 27(1) cannot be attached. The refund of the money under mistake of law is not regulated by the provisions of the Customs Act. 6. In so far as the question whether refund can be granted in a proceeding under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Finance (Department of Revenue and Insurance) No. 38-Customs, dated 17-3-1972. He made the application for refund beyond the period of six months fixed under S. 27. That application was rejected as belated. When that order was challenged before this Court, a learned Single Judge dismissed the petition observing :- "The notification granting the exemption shows that in the event of the conditions not being satisfied, regulatory duty is payable for cashew nuts. The question whether these conditions are satisfied or not is therefore a question for determination by the fact finding authority. Until such questions are answered in favour of the importer, he remains liable for payment of duty. In the present case there was no occasion for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner would have been futile. So I do not think it proper to non-suit the petitioner on the ground that alternate remedies have not been exhausted. In exercising the powers under Article 226 of the Constitution it is open to this court to pass such orders as public interest dictates and equity projects. On the facts and circumstances of the case, I hold that petitioner is entitled to get refund of Rs. 44,766.07 claimed in Ext. P3 application. Respondents are directed to issue orders refunding this amount to the petitioner within one month from the date of receipt of a copy of the judgment. In case the amount is not refunded within that period it will carry interest at the rate of 12% per annum from the expiry of that period of one m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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