Page 161 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] SUNCHAN TRADING CO. v. COMMISSIONER OF CUSTOMS, CHENNAI 839

was submitted by the Learned Counsel for the respondents or whether the Court
can award interest to the petitioner and if so at what rate?
14. The necessity for filing a suit under Section 9 of the Civil Procedure
Code would arise only where there are disputed questions of fact that needs to
be established after trial. Such exercise would result in waste of time. The de-
partment will also have to spare its official to appear in Court. Therefore, there is
no point in relegating the petitioner to approach a civil Court for getting interest
on such delayed payment and deny the relief. As there are no disputes in the
facts and circumstances of the present case I am inclined to take up the case and
pass order.
15. Bona fide importers and persons who are entitled to relief under the
provisions of the Customs Act, 1962 suffer if the officer fails to act fairly who
shield themselves under Section 155 of the Customs Act, 1962 for such inaction.
16. In this connection, it may be apt to refer to the following passage
from the decision of the Hon’ble Supreme Court in Unichem Laboratories Ltd. v.
CCE, (2002) 7 SCC 145 at page 150 = 2002 (145) E.L.T. 502 (S.C.).
12. For the aforementioned reasons, we are of the view that denial of
benefit of the notification to the appellant was unfair. There can be no doubt
that the authorities functioning under the Act must, as are in duty bound, to pro-
tect the interest of the Revenue by levying and collecting the duty in accordance
with law - no less and also no more. It is no part of their duty to deprive an assessee
of the benefit available to him in law with a view to augment the quantum of duty
for the benefit of the Revenue. They must act reasonably and fairly.
17. Though in a different context, the Hon’ble Supreme Court in Pres-
tige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449, held that in exercising
power under Article 226 of the Constitution of India the High Court is not just a
Court of law, but is also a Court of equity and a person who invokes the High
Court’s jurisdiction under Article 226 of the Constitution of India is duty-bound
to place all the facts before the Court without any reservation.
18. Plain and simple fact of the case is that respondents have refused to
pay the balance amount of the sale proceeds from the auction after due adjust-
ment and appropriation even after Section 150 of the Customs Act, 1962 was
amended in 2011. They have made the petitioner run from pillar to post. In the
process, the petitioner has been put in a tiresome litigation for over a period of
two decades to recover the amounts which has been wrongly withheld by the
respondents.
19. Since the respondents failed to act fairly, I am inclined to award the
interest to the petitioner on account of the delay. By paying just interest to the
petitioner, the respondents would not be paying any amount out of their pocket.
Indeed they would be paying interest on the amount, which was wrongly re-
tained in their accounts and earned bank interest which would have legitimately
accrued to the petitioner. If the amount was paid to the petitioner then and there,
the petitioner would have either earned interest on the amount or utilised the
amount for his business. There has to be restitution of interest, which the peti-
tioner would have earned if there was timely payment. The petitioner deserves
to be compensated.
20. The balance of the sale proceeds which has been withheld by the re-
spondent without the authority of law, is not a duty and therefore, the provisions
EXCISE LAW TIMES  15th June 2020  161