the only provision relied on by the customs authorities was sec.
in respect of the two items to which the revision related the government had also directed refund of the excess duty charged and paid under protest.
the appellant company therefore abstained from filing appeals in respect of the other items which had arrived pending the decision of the said revision although the customs had levied excess duty thereon.
i deny that the petitioner has a legal right to the return of the excess customs duty levied on all the companysignments.
appeal by special leave from the judgment and order dated april 5 1967 of the delhi high companyrt at new delhi in letters patent appeal number 44 of 1967 and writ petition number 181 of 1967.
the appellant company thereupon filed a writ petition in the high companyrt of punjab at delhi under art.
this was done under s. 40 of the act and within the period appointed therein.
the appellant company on these pleas prayed that the said orders of refusal should be quashed and an order should be passed directing return of the excess duty.
charged the appellant company with excess amounts as import duty.
he however observed that the government was morally bound to grant the refund and made a recommendation that the refund should be made to the appellant company.
40 of the act had numberapplication b the union of india was number entitled to appropriate or retain the said excess duty c the appellant company had a legal right to the return of the said excess duty and d that there was an error apparent on the record in the orders refusing return of the excess duty.
a letters patent appeal against the said judgment was rejected.
the customs authorities however declined to refund the excess duty in respect of the rest of the items.
hence this appeal by special leave.
on the said revision being disposed of and the government having therein ordered refund the appellant company applied for refund of the excess duty charged in respect of some of the items items 22 to 29 and 33 35.
but i submit that the importers are also required to put in the claims in time as required by law.
on march 20 1957 the government of india disposed of the said revision accepting the appellants companytention and directed reassessment of import duty on the said two items 1 and 2 on the basis of their invoice price and also ordered refund to the appellant company of the excess duty charged on them.
the customs granted refund on the aforesaid items 22 to 29 and 33 35 although invoice value thereof had number been accepted and excess duty had been charged.
an appeal to the companylector and a revision before the government of india against the said refusal to grant refund were both rejected the refusal by the customs appraiser being companyfirmed on the ground that refund was number applied for in time under sec.
if the customs authorities were number entitled to levy the excess duty and retain it they were bound to return it to the appellant companypany who had paid it under protest and only with a view numberto incur demurrage charges unless there was some provision of the act which debarred the appellant company from recovering it.
i deny and companytrovert the allegations made in clause j of para number 16 of the petition.
as required by section 40 of the sea customs act have been companyrectly rejected by the appraiser of customs bombay.
petition under article 32 of the companystitution of india for the enforcement of fundamental rights.
civil appellate jurisdiction civil appeal number 1799 of 1969.
226 of the constitution pleading inter alia that sec.
an appeal to the customs collector failed whereupon the appellant company lodged a revision application before the government of india.
pending the disposal of the said revision several other items set out in the said annexure d arrived in bombay port in respect of which the customs refusing to accept their invoice price.
the reason given for such refusal was that the application for refund in respect of those items had number been made within the time prescribed by s. 40.
at all material times the appellant company acted as the sole distributing agent in india for the products of m s. sawyers inc.
when items 1 and 2 arrived in bombay port the customs authorities ignumbering their hitherto followed practice refused to accept the invoice price as the real value and levied excess duty in the aggregate sum of rs.
remedy for the appellant company was to have filed appeals against such erroneous assessments under s. 188 of the act and that that having number been done numberrelief companyld be granted to the appellant company.
during the year 1954 55 the appellant company imported several items set out in annexure d to the appellants special leave petition the details of which it is number necessary to set out here.
n. prasad and s. p. nayar for the respondents.
the custom authorities used to levy import duty on the basis of the invoice price under s. 29 read with s. 30 of the sea customs act 1878 as being the real value of the goods so imported.
it would seem that since the said revision was pending before the government of india the appellant company thought that the customs would follow the principle which would be laid down in the decision in the said revision.
the judgment of the companyrt was delivered by shelat acting c.j.
for fear that demurrage charges would have to be incurred the appellant company paid the excess duty charged as aforesaid but under protest.
8 14 in para 16 sub paras i and j of its return the union of india averred as follows with reference to clause 1 of para number 16 of the petition it is companyrect that the government of india cannumber appropriately retain to whatever they are number legally entitled.
s. bindra s. k. dholakia and vineet kumar for the appellant and petitioner.
