1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 9021 of 2005 M/s Flovel Tacke (P) Ltd. ) Company incorporated under ) the Companies Act I of 1956 ) and having its Corporate ) Office situate at 13/1,Mathura) Road, Faridabad 121 003 ) Haryana ) ..Petitioner vs. 1 Union of India through the ) Central Government Pleader ) Aayakar Bhavan, 2 nd floor, ) New Marine Lines, ) Mumbai 400 001 ) 2 The Commissioner of Customs ) Appraising Group V-B, Nava ) Sheva Uran, District Raigad ) (Maharashtra) ) ..Respondents Mr.P.S.Anand for petitioner None for respondents. CORAM: V.C.DAGA AND K.K.TATED JJ 12 th January, 2010 J U D G M E N T (Per K.K.TATED J.) 1 Heard. 2 By this petition filed under Article 2 226 of the Constitution of India, the petitioner is seeking a writ of mandamus directing the respondents to pay to the petitioner interest on Rs.63,40,757/- at the rate of 15% from the date of application for refund dated 6 th July 1995 till the date of the refund by the cheque dated 3 rd November, 2004 amounting to Rs. 63,40,757/- representing excess custom duty paid by the petitioner under mistaken belief. 3 The case of the petitioner is that there was a delay on the part of the respondents in refunding the customs duty as such, they were entitled to interest on the delayed payment under section 27-A of the Customs Act, 1962 (the Act for short). 4 The few relevant facts of the case are as under: 5 On 6 th July, 1995 the petitioner filed an application for refund of the 3 customs duty under section 27(1)(b) of the Act read with Regulation No.2 of the Customs Refund Application (Form) Regulations, before the Assistant Commissioner of Customs, Raigad claiming refund of Rs.63,40,757/- paid in excess of required custom duty on the goods imported by them. The petitioner in support of its claim submitted various documents. 6 The aforesaid application was decided by the Assistant Commissioner of Customs, Raigad who disallowed the benefits of notification dated 1 st March, 1994 to the petitioner. 7 Being aggrieved by the said order dated 19 th February, 1996 passed by the Assistant Commissioner of Customs, Raigad the petitioner preferred appeal before the Commissioner (Appeals), Mumbai. In the said appeal, the Commissioner of Customs (Appeals), Mumbai vide its order dated 17 th 4 June, 1997 held that the petitioner was entitled for refund of excess customs duty paid to the tune of Rs.63,40,757/-. 8 On the basis of the aforesaid order dated 17 th June, 1997, the petitioner filed refund application dated 22 nd September 1997 in the office of the Assistant Commissioner of Customs (Refund). The said application was rejected by the Assistant Commissioner of Customs by the order dated 22 nd January, 1999 holding that the subject issue was pending before the High Court. The petitioner thereafter again made an application before the Commissioner of Customs (Appeals) for refund of the additional customs duty paid by them. The said application was also dismissed by the Commissioner of Customs (Appeals) vide its order dated 28 th May, 1999. 9 The petitioner against the said order preferred an appeal before the 5 Appellate Tribunal. The Appellate Tribunal by its order dated 25 th July, 2000 dismissed the appeal holding that the subject issue was still sub-judice before the High Court, as such it was not possible to decide the same. 10 The petitioner, thereafter, again wrote a letter dated 3 rd July, 2001 to the Assistant Commissioner of Customs appraising Group V-B pointing out that the High Court vide its order dated 18 th April, 2001 had made the chamber summons absolute in terms of prayer clauses (a) and (b)as such their application for refund of excess amount of customs duty paid by them needed to be considered and decided immediately. 11 The said application was decided by the Deputy Commissioner of Customs holding that the transaction value declared by the petitioner in the invoice required to be accepted under Rule 4 of the Customs Valuation Rules 1988 by the assessing goods 6 after usual check, scrutiny and verification of the declared value. On the basis of the said order dated 22 nd April, 2002, the petitioner vide its letter dated 10 th December, 2003 called upon the Deputy Commissioner of Customs to refund the sum of Rs.63,40,757/- along with interest at the rate of 18% p.a. from the date it became due and payable till payment in full and final. 12 The aforesaid application was decided by the Deputy Commissioner of Customs Group V-B on 12 th October, 2004 sanctioning refund in favour of the petitioner but without granting interest claim. That is how, the respondents have refunded the said amount without interest to the petitioner on 3 rd November, 2004. 13 The petitioner, thereafter, wrote a letter dated 20 th July 2005 calling upon the the Deputy Commissioner of Customs appraising group V-B to pay interest on the refund claim 7 of Rs.67,14,510/-. The said application was kept pending by the authorities for unusually long time. 14 The petitioner in the above circumstances has preferred the present writ petition seeking direction against the respondents directing them to pay interest on their its refund of Rs.63,14,511/- 15 The learned Counsel appearing on behalf of the petitioner submitted that in view of section 27-A of the Customs Act, it was mandatory on the part of the respondents to pay the interest if the amount was not refunded within the statutory period. Section 27-A of the Customs Act reads as under: 27A: Interest on delayed refunds: If any duty ordered to be refunded under sub-section (2) of Section 27 to an applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, (not below five per cent) and not exceeding thirty per cent, per annum as is for the time being fixed (by the Central Government, by notification in 8 the Official Gazette), on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty; Provided that where any duty, ordered to be refunded under sub- section (2) of section 27 in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. It is clear from section 27A that the assessee was entitled to interest for delayed payment from the customs authorities. 16 In the present case, the Deputy Commissioner  Customs Group V-B passed the order dated 12 th October, 2004 holding that the petitioner is entitled to refund of customs duty without any further order 9 directing the payment of interest on the said amount. Though the said order had denied interest to the petitioner, petitioner did not prefer appeal against the said order though the order was appellable under section 128(1) of the Customs Act, 1962 within 60 days from the date of communication of the said order. It is thus clear that the petitioner has accepted the order passed in appeal. The said order was allowed to become final and conclusive. 17 The petitioner was entitled to prefer an appeal against the order denying interest on delayed payment. The petitioner having accepted the order refusing to grant interest, now cannot turn around and make any complaint against that order and seek writ of mandamus in the writ 10 jurisdiction of this Court. 18 In the above view of the matter the writ petition is liable to be dismissed. Rule accordingly stands discharged. No order as to costs. (K.K.TATED J.) (V.C.DAGA J.)