Chandra Radio House vs Union Of India
1985 Latest Caselaw 297 Del

JUDGMENT

Charanjit Talwar, J.

1. The petitioner herein, M/s. Chandra Radio House, a partnership firm carrying on business at Agra has challenged the decision of the Union of India passed on 6th December, 1971, rejecting the claim of the petitioner for refund of countervailing duty on the ground that the said claim was time-barred.

2. To appreciate the contention urged by Mr. Daljit Singh learned Counsel for the petitioner I may notice a few facts. The petitioner imported four cartons of radio parts used in the manufacturer of electronic instruments from Japan vide Bill of entry bearing No. 1652/112 dated 28th March, 1969. On the said imported goods apart from the prescribed import duty the petitioner was made to pay an additional countervailing duty amounting to Rs. 2509.50. The petitioner's case was that the levy of countervailing duty was without jurisdiction as it was not leviable under the Customs Act, 1962. The duty was paid on 14th April, 1969. The petitioner filed an application for refund of that duty on 14th December, 1969. A copy of that application is Annexure P/1 to the writ petition. In the first paragraph of that application it was stated. "You have charged excise duty on this consignment of valves from OSAKA, JAPAN @ Rs. 1.50 per valve. Therefore we have to submit that the excise duty is not payable on these valves as they are allowed to be imported to use in making electronic instruments."

3. Reference to the excise duty by the petitioner in the said application is to the additional countervailing duty. It is submitted that the additional countervailing duty is leviable on those products when similar products are manufactured in the country and which products are subject to levy of excise duty. This position seems to be correct. At any rate, the Assistant Collector of Customs, Refund Section, respondent No. 4 herein, without going into the question whether countervailing duty was leviable or not, rejected the claim on the ground that it was time-barred. The said order has been annexed as Annexure P/2 and reads as follows :-

"The application for refund of duty from M/s. Chandra Radio House, was not received within six months from the date of payment of duty, i.e. 14-4-1969. Their claim for refund is time-barred under Section 27, sub-section (1) of the Customs Act, 1962, and is, therefore, rejected."

This order was upheld by the appellate as well as revisional authority.

4. The contention which has been raised before me is that a sub-section (1) of Section 27 of the Customs Act, 1962 was not applicable at the relevant time. Mr. Daljit Singh submits that at the relevant time in the year 1968-69 Indian Tariff Act, 1934, was applicable and it was under Section 2-A of the Act that countervailing duty had to be paid. The Indian Tariff Act, 1934, was repealed and Customs Tariff Act was enacted in the year 1975. It is under Section 3 of that Act that additional duty equal to excise duty is leviable. Sub-section (5) of Section 3 provides :

"(5) The duty chargeable under this Section shall be in additional to any other duty imposed under this Act or under any other law for the time being in force."

Sub-section (6) of that Section provides that the provisions of the Customs Act 1962, and the rules and regulations made there under apply to the duty chargeable under Section 3 as they apply in relation to the duty leviable under the Customs Act.

5. There seems to be considerable force in the contention of Mr. Daljit Singh that at their relevant time, Section 27(1) of the Customs Act, which provides for the period for filing of a refund application, was not applicable. However, I find that there is no discussion by the Assistant Collector of Customs, respondent No. 4 and the appellate as well as the revisional authority on the question whether the countervailing duty was leviable at all in the present case. The petitioner's case, as noticed above, has throughout been that duty was not leviable. The authorities below have not discussed this aspect.

6. In their counter-affidavit in reply to Paragraphs 5 and 6 of the petition the stand taken by the respondents on this aspect is as follows :-

"Paras 5 and 6 of the petition are denied. It is denied that levying of countervailing duty is alleged as alleged. It is submitted that all electronic valves which may be used for the manufacturer of electronic instruments, are chargeable to countervailing duty under Item 33 AA of Central Excise Tariff. The levy of the said duty by answering respondents, is perfect, legal valid and in accordance with the provision of Customs and Tariff Act."

7. As noticed above, the authorities have not gone into this question for deciding whether Section 27 of the Customs Act was applicable in the present case, in my view, it was mandatory for the Assistant Collector of Customs to have given a finding on the same. In the result, the petition is allowed and the matter remanded to the Assistant Collector of Customs, Refund Section, New Customs House, Bombay, respondent No. 4 herein, for decision in accordance with law. No order as to costs.