JUDGMENT

S.PARIPOORNAN, J.

(1) LEAVE granted in all the special leave petitions

(2) IN this batch of 31 appeals a common question of law arises for consideration. It is regarding the interpretation to be placed on Section 61(2) of the Customs Act (hereinafter referred to as the Act). The High court of Bombay dismissed a batch of 36 writ petitions in the matter by a common judgment dated 19-11-1992. The question that arose for consideration was posed, thus:

"ON importation of goods under OGL if the importers had kept the same in the warehouse under Section 59 of the Act and after expiry of statutory period of three months if they clear the goods under the Advance Licence issued under DEEC Scheme, whether such importers are liable to pay interest on the amount of duty which was assessed and ascertained on the date of warehousing until the goods are cleared under Section 68 of the Act (excluding the free period of three months)

(3) WRIT Petition No. 1854 of 1991 was treated as the main case. The facts in the said case were adverted to in detail. The judgment in the said case was followed in all other cases, including Writ Petitions Nos. 1908 of 1991, 1958 of 1991 and 3145 of 1991. The three appeals CAs Nos. 2416-2418 of 1993 are preferred against the judgments in the said writ petitions. For convenience sake the facts relevant to Writ Petition No. 1854 of 1991 (the main judgment) will be adverted to since the facts are almost identical in all the other cases

(4) THERE are two petitioners in Writ Petition No. 1854 of 1991. The first petitioner is a public limited company incorporated under the Companies Act, 1956. The second petitioner is a shareholder. The company is engaged in the business as importers, exporters and manufacturers. The first respondent is Union of India and the second and third respondents are officials of Customs Department. The petitioners imported Polyester Filament Yarn of Taiwan origin. The said goods were shipped by the foreign suppliers from the port of shipment Q Keelung and on removal of the goods the petitioners filed 6 Bills of Entry for warehousing. The goods were allowed to be warehoused under 6 bonds all dated 4/12/1990 expiring on 3/3/1991. On or about 9/5/1991, the petitioners filed 6 Bills of Entry for ex-bond clearance for home consumption. Copies of these Bills of Entry for ex-bond are Exhibits B-l to B-6. In view of the Advance Licence produced by the petitioners, they were entitled to clear the goods under Exemption Notification read with Duty Exemption Entitlement Certificate (DEEC). Respondents accordingly assessed these Bills of Entry to "Nil" duty but they endorsed thereon to recover interest at 18% on duty from 4/3/1991 till clearance, although the duty assessed is nil duty. The petitioners cleared the goods under DEEC Advance Licence

(5) THE action of the respondents to recover interest 18% per annum was a challenged by the petitioners. According to them. no duty was payable a fortiori, no interest is also payable. The action is challenged as unauthorised, arbitrary and illegal. Section 61(2) of the Act, as it stood at the relevant time, is relied on to substantiate the plea. The thrust of the plea is that the goods cleared were duty-free and if no duty was recoverable on the imported goods at the time of clearance, no interest can be charged much less at 18% under Section 61(2) of the Act

(6) IN all these cases, the assessees have imported goods under OGL and filed Bills of Entry under Section 59 for warehousing. Accordingly, the imported goods were kept in warehouse. It is also common premise that all these importers have obtained Advance Licence under DEEC Scheme at a later point of time. It is also common premise that after expiry of three months period, these importers cleared the warehoused goods against their respective licence without payment of duty and refused to accede to the request made by the respondents to pay