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TMI Blog1994 (3) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... as also deposited by the petitioner as and when required and according to the petitioner, he has deposited a total sum of Rs. 3,07,074.80 for the period February 1986 to June 1989. There is no dispute that this amount has been paid for and on behalf of the Central Warehousing Corporation, by the petitioner hereinabove. It has been submitted that the respondents had claimed this amount with reference to condition No. 2 of the licence Annexure-1, which reads as under :- "2. The licensee shall apply for the renewal of the licence in the prescribed proforma not later than the last day of November of the year preceding to which the renewal relates. He should also deposit the cost of establishment and pension in advance in respect of Officer of Customs deployed in the warehouse for the whole year. In the event of the failure to do so, clearance shall not be permissible between the period after the expiry of the licence and the renewal ." While the petitioner went on paying the amount against the item of cost of establishment and pension in advance for the salary of one Inspector and one Class IV employee, who remained present at warehouse for the purpose of recovering the custom duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period February 1986 to 7th March, 1989 has been rejected by the impugned order Annexure-35 and against this order the present writ petition has been preferred. 3.Mr. Sudhir Gupta, learned counsel for respondents Nos. 1 and 2 has raised following preliminary objections : that the petitioner had no(i) locus standi to file and maintain this writ petition because the demand has been raised against the Central Warehousing Corporation and the amount had been paid for and on behalf of the Central Warehousing Corporation and, therefore, if at all any writ petition was to be filed, it was the Central Warehousing Corporation, which should have preferred the writ petition. This objection of the petitioner (sic respondent?) may not detain me from proceeding further for the simple reason that admittedly the amount in question had been paid by the petitioner and it is the petitioner's claim for refund, which has been rejected and the petitioner is the directly concerned party because, it is the petitioner, who has in fact parted with the money in question. This preliminary objection of Mr. Gupta is, therefore, rejected. that the impugned order Annexure-35 dated 13th July,(ii) 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that any manufacturing process or other operations were carried out, in the present case, I find from condition No.1 of the licence of the public bonded warehouse, i.e. Annexure-1 that the licence itself has been granted under Section 57 of the Act for deposit of dutiable goods, namely, industrial raw material or component parts (not for manufacture-in-bond and other operations under Section 65). In this view of the matter, I have no hesitation to say that there is no question of invoking Section 65 so as to say that the impugned order is an order under any condition under Section 65 of the Act, passed by the Assistant Collector and, therefore, the remedy of appeal under Section 128 of the Act could have been availed by the petitioner. Mr. Gupta has placed reliance on Asst. Collector, C.E. Chandan Nagar v. Dunlop India Ltd. [1985 (19) E.L.T. 22 (SC) = AIR 1985 S.C. 330]. In this judgment the Supreme Court has laid down the well known principle that as and when any effective statutory remedy is available the writ jurisdiction cannot be invoked. There cannot be any quarrel with the aforesaid proposition of law laid down by the Supreme Court, but in the instant case, I do not find th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of the salary of the Inspector and Class IV employee of the Customs Department, who are working in the Corporation for the purpose of collecting the customs duty, nay, in the impugned order Annexure-35, the Assistant Collector has further observed in the end while rejecting the petitioner's claim for refund that the plea taken by the party that the staff, for which, cost of establishment charges deposited and claimed for refund were not utilised by them on wholetime basis, is not acceptable as the staff was made available as and when required by them. Thus, the services of the Customs Department were utilised as and when required and there was no person on wholetime basis for the whole year. 5.Mr. Gupta has submitted that the respondents have not admitted in the reply that there was no staff of the Customs Department on wholetime basis. That may be so, but it is clearly discernible from the correspondence in the order referred to hereinabove that wholetime staff had not been deployed and, therefore, the argument of Shri Gupta that this amount could be recovered under Condition No. 2 of the licence is not tenable. 6.In para 31 sub-para (vi) of the writ petition the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to 7th March, 1989. The fairness and lack of arbitrariness is the very foundation of the rights of equality under Article 14 of the Constitution of India and every party is entitled to a fair treatment. Once the respondents have come to the conclusion that it is reasonable to charge on hourly basis, how the party can be made to suffer for the period in past merely because the concerned authorities took the decision on 7th March, 1989. It was for the authorities concerned to take the decision on the representations which had been filed by the petitioner. That would be rather unfair and would militate against the principle of fairness interpreted as a facet of equality enshrined in Article 14 of the Constitution of India and, therefore, without going into the controversy as to for how many hours, the services were actually utilised during the period February 1986 to 7th March, 1989. In my opinion it would be reasonable for the concerned authorities to examine on the basis of the record available with them as to for how many hours the two employees of the Customs Department had worked in the Warehousing Corporation. The Central Warehousing Corporation has been impleaded as party, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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