TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 826
X X X X Extracts X X X X
X X X X Extracts X X X X
....establish a Joint Venture Organisation - ITD-ITD CEM JV. This Joint Venture is unincorporated. For all purposes they are represented by the first and second writ petitioners. The reference to the petitioners in this judgment will also include the Joint Venture ITDITD CEM JV. Kolkata Municipal Corporation was inviting tenders, in or about 2008 for its Drinking Water Supply Project. The Corporation invited offers for designing and supplying of reinforced cement jacketed pipe cast monolithically, with a 1626 mm outside diameter, spirally welded carrier steel pipes with cement mortar lining inside to be laid by micro tunneling/pipe jacking system at about 7.0 m to 8.0 m depth below the ground level for an approximate length of 15.80 km along B....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the whole or part of the customs duty or exempt such duty subject to certain conditions. Column 2 of this notification refers to the chapter or heading or subheading of the Schedule to the Customs Tariff Act, 1975. Under these headings could be found "9801" which relates to Drinking Water Supply Projects for supply of water for human or animal consumption. The entire duty for importation of this project was exempted. Similarly, under heading 84 were provided tunnel boring machines. These machines also enjoyed hundred per cent duty exemption. At this point of time the petitioners feel that they made their classification erroneously. The correct classification according to them is stated by them at page 8 of the petition. The said goods w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....could not be taken as a proper application under Section 27 for refund. In any event, it was hopelessly out of time. I will discuss the cases cited by the parties when I discuss the merits of the matter. If one examines the various classification lists one would tend to form an opinion that the description "Drinking Water Supply Projects for supply of water for human or animal consumption" under 9801 is very general. It can cover a wide class and description of goods. The entry against 84 or any other chapter under Serial No. 397 "tunnel boring machines" describes specifically the goods imported by the petitioners. It is well-known that in classifying goods the classification number and description which specifically or most closely descr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y or interest to claim refund. The petitioners did not file any application for refund within that period or at all. The petitioners only made a representation dated 4th June 2013 before the Commissioner. Even if this representation could be called an application under Section 27 of the said Act, this representation was hopelessly barred by the laws of limitation. I do not agree. Section 27 only applies when there is over payment of duty or interest under the Customs Act 1962. Therefore, the duty or interest must be leviable under the Customs Act and paid under it. Any excess sum allegedly paid has to be claimed within one year. When the petitioners' case is that the tunnel boring machines were not exigible to any duty, any sum paid into ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....covered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Now is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of 'alternative remedy' since the root principle of law married to justice, is ubi jus ibi remedium. 2. Another point, in our jurisdiction social justice is a pervasive presence; and so, save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by consen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....' on account of import of the said Boring Tunnel machines when the same are wholly exempted. Your petitioners state that the said joint venture has already been paid customs duty upon import of any other machines and have not ever raised any dispute. However, upon detection of the factum was being paid by way of customs duty under bona fide mistake the said joint venture immediately their Advocate by a letter dated June 4, 2013 submitted representation before the Respondent No.1 and 2 apprising them of such bona fide mistake committed by the said joint venture and prayed inter alia, for return of the said sum of Rs. 360.46 lakhs which is being unlawfully retained as customs duty on account of the import of the said machines which is otherwi....