9911796707
TMI Blog1992 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 13th June, 1990 is annexed to the Writ petition. 2. Mr. Mitra appearing for the respondents has prayed for time to file an affidavit-in-opposition. Mr. Mitra stated that his client would like to put in an affidavit showing facts about the excess payment of duty being made by the Writ petitioner by reason of its own mistake, and that it is by reason of the Writ petitioner's own inaction that the refund was not claimed within time. Mr. Mitra has also said that he would like to put in the affidavit, that the concerned Bill of Entry was not corrected by the Customs authorities as stated by the Writ petitioner and that no refund could be had on the basis of the date of that alleged correction. I do not think there is any necessity of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point urged by Mr. Bajoria. 7. Mr. Bajoria stated that assuming that his client was not entitled to refund of the overpaid duty within the four corners of the Customs Act, yet there vests in the Writ Court and the Courts enforcing fundamental rights a residuary jurisdiction to permit return of money unfairly held by public Respondents who are State or other authority within the meaning of Article 12 of the Constitution of India. Mr. Bajoria has stated that such an enforcement, or Mandamus directing return of money, under circumstances which are considered by the Court to be fair within the ambit of Article 14 of the Constitution of India as at present judicially interpreted, would not be limited by any special provision of limitation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a money figure by the number of packages instead of by the dollar amount that should have been the appropriate figure. 10. The next case relied upon on the part of the petitioner is the case of Shri Vallabh Glass Works reported in AIR 1984 Supreme Court 971 = 1984 (16) E.L.T. 171 (SC). It was contended on the basis of this authority that a Writ jurisdiction is separate from the jurisdiction for ordinary enforcement of rights, say, for example, those rights which have accrued by reason of mistakes. It may be that an ordinary suit upon a mistaken payment is to be instituted within three years. But if a refund is claimed by way of a constitutional action, then the discretion of the Court for ordering such a refund might well be exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is now practically settled that the writ petitioner cannot claim refund within the four corners of the special statute being the Customs Act. However, the other question still remains as to whether the Respondents can justly hold on to the overpaid money. This is a separate question. The Writ petitioner complains that the keeping of overpaid refund with the Respondent authorities is unfair and therefore in breach of Article 14 of the Constitution of India which enforces fair action on the part of all public authorities. Thus the special period of limitation engrafted in the Customs Act would not stand in the way of enforcing fair action on the part of the Respondents if such is otherwise seen to be a mandate flowing from the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund rather than the retention of the overpaid amount. 15. The amount of money overpaid is not disputed. The delay in claiming refund is under one month. The pursuit of remedies under the Customs Act has been thorough and diligent and has spread over a period of 10 years. No negligence or laches on the part of the Writ petitioner is apparent excepting at the initial period where the period of 6 months was allowed to lapse by some days. On the other hand the respondent authorities have laid no claim to the overpaid duty on any legal or other just head or basis. It is quite possible that both the Government departments and the Tribunal would rather refund the amount but find it impossible on the basis of law to effect the refund themselv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a direction for refund of the overpaid duty immediately to the Writ petitioner. No question of payment of interest arises as this is a case for enforcement of fair action on the part of the State authorities and it is not a resolution of private disputes where interest rates are calculated on principles applicable in those situations. There shall, accordingly be a Writ absolute in the nature of Mandamus directing the Respondents to refund forthwith to the Writ petitioner the said sum of Rs. 20,97,487.35 being an excess customs duty paid on import of 82 and 37 cases of Stainless Steel mentioned in the Writ petition and the annexures thereto. 18. The refund shall in any event not be delayed beyond four weeks from the date of service of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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