Refund of Excess Fine and Penalty is a Matter of Right under Section 27 of CA, 1962

In The High Court of Kerala AAt Ernakulam

WP(C). No. 6704 of 2009(G)

1. P. P. Suresh, Pathiyamparambil,                                         ... Petitioner

Vs

1. Assistant Commissioner of Customs                                    ... Respondent

For Petitioner         : Sri. P. A. Augustian

For Respondent      : Sri. Thomas Mathew Nellimoottil, SC, CB EX

The Hon'ble MR. Justice P.N. Ravindran

Dated: 24/09/2009

O R D E R

P.N. Ravindran

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WP(C) No. 6704 of 2009 - G

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Judgment – Heard Sri. T.R. Jagadeesh, the learned counsel appearing for the petitioner and Sri. Thomas Mathew Nellimoottil, the learned senior standing counsel appearing for the Central Board of Excise and Customs.

2.  The petitioner, a non-resident Indian, who returned home in the year 2006, imported used household articles under the Transfer of Residence Rules. On the ground that the household articles were imported in commercial quantities, the Assistant Commissioner passed Ext.P2 order confiscating the said goods. He also ordered that it will be open to the petitioner to pay a redemption fine of Rs.1,40,000/- in lieu of confiscation. He also imposed a penalty of Rs.60,000/- on the petitioner. The petitioner remitted the said sum of Rs.2,00,000/-. He also went in appeal. By Ext.P3 order passed on 26.4.2007, the Commissioner of Customs (Appeals), reduced the redemption fine to Rs.1,00,000/-. The order imposing penalty of Rs.60,000/- was upheld. The petitioner had, after the first appeal filed by him was disposed of by Ext.P3 order, made a request for refund of the excess sum of Rs.40,000/- remitted by him as redemption fine. He thereafter filed a revision petition before the Government of India. By Ext.P5 order passed on 26.5.2008, the Government of India reduced the redemption fine from Rs.1,00,000/- to Rs.70,000/- and the penalty from Rs.60,000/- to Rs.30,000/-. In other words, the liability of the petitioner stood reduced from Rs.2,00,000/- originally fixed by the Assistant Commissioner to Rs.1,00,000/- under both heads. The petitioner thereupon moved the respondents seeking refund of the sum of Rs.1,00,000/-. As the said request was not considered and refund made, this writ petition was filed seeking a writ in the nature of mandamus commanding the respondents to refund the sum of Rs.1,00,000/- paid in excess by the petitioner.

3.  The respondent has filed a counter affidavit and an additional counter affidavit raising various technical grounds including the contention that the claim for refund is time-barred. The respondent does not dispute the fact that by Ext.P5 order, the redemption fine and penalty stands reduced from Rs.2,00,000/- to Rs.1,00,000/-. As an officer of the Government of India, even without the petitioner making a claim for refund, the respondent had a duty to inform him that he had a right to obtain refund of the excess sum of Rs.1,00,000/- remitted by him. It is strange that even though the original order passed by him was modified by the Commissioner of Customs (Appeals) and further modified in revision by the Government, the respondent is declining to give effect to the revisional order. As an officer of the Government of India, the respondent has a duty to be fair in his dealings with citizens. The petitioner's liability to pay redemption fine and penalty stands limited to the sum of Rs.1,00,000/-. The respondent is an officer subordinate to the Government of India and also to the Commissioner of Customs (Appeals). Therefore, he is bound to give effect to the orders passed by the superior authorities. In my opinion, the technical pleas raised by the respondent cannot result in the petitioner being found liable to pay any amount in excess of the sum of Rs.1,00,000/- as fixed by the Government of India in revision. Otherwise, it will lead to unjust enrichment and will render the appellate and revisional remedies illusory. I accordingly hold that the petitioner is entitled to refund of the excess sum of Rs.1,00,000/- paid by him as redemption fine and penalty.

4.  In the result, I allow this writ petition and direct the respondent to refund to the petitioner the sum of Rs.1,00,000/- within two weeks from the date on which he produces a certified copy of this judgment, before him.