The court determined that the payment of customs duty by the petitioner was voluntary, not under protest, thereby denying the refund claim due to failure to prove unjust enrichment.

ORDER :

ABDUL QUDDHOSE, J.

This writ petition has been filed challenging the impugned order dated 04.07.2022 passed by the second respondent rejecting the petitioner’s request for refund of a sum of Rs.3,01,01,534/- paid by them towards differential customs duty during DRI (Directorate of Revenue Intelligence) investigation conducted pursuant to the reopening of the case by the Customs Department on the ground that the petitioner had misdeclared the imported goods in the Bills of Entry submitted by them.

2. The petitioner had paid the basic customs duty at the rate of 5% Advalorem under Customs Tariff Heading 2309.09 for the import of Shrimp Larvae Feed in pellet form during 2014 to 2017 under 11 Bills of Entry submitted by them. The petitioner had also obtained clearance of the imported goods from the Customs Department based on their declaration in the 11 Bills of Entry. Subsequently, DRI had investigated the matter on the ground that Shrimp Larvae Feed imported by the petitioner was not in pellet form, and therefore, the benefit of exemption granted to the petitioner from paying higher customs duty at 30% Ad valorem was incorrect, and hence, the petitioner is liable to pay the differential duty for the import of Shrimp Larvae Feed in non-pellet form during 2014-2017 under 11 Bills of Entry.

3. According to the petitioner, based on the advise of DRI, it had deposited a sum of Rs.3,16,91,824/- with the Customs Department, being the differential customs duty payable by them. The petitioner claims that eventhough on the advise of DRI they had deposited a sum of Rs.3,16,91,824/- with the Customs Department, they were under the belief that they should seek clarification in the notification relied upon by DRI for claiming differential customs duty from them. Therefore, the petitioner claims that they had stated in the letter dated 05.03.2019 that they desire to approach the related Ministry. According to the petitioner, Vide Finance Bill, 2019, it was clarified that Prawn Feed and Shrimp Larvae Feed, other than in pellet form, will also attract 5% customs duty, as is the case with other Fish Feed in pellet form.

4. The claim of the petitioner for refund of the amount deposited was rejected on 06.12.2019 on the ground that since the petitioner had admitted wrong availment of concessional rate of duty, the question of refund does not arise. Aggrieved by the rejection order dated 06.12.2019, the petitioner had earlier approached this Court by filing a writ petition. This Court, by its order dated 24.11.2021 passed in W.P.No.14126 of 2020, remitted the case to the second respondent with a direction to issue proper show cause notice within 60 days and proceed to pass orders on merits and in accordance with law preferably within a period of 30 days after affording personal hearing to the petitioner. According to the petitioner, in the said order, it was made clear that the amount deposited by the petitioner during DRI investigation was treated to be an amount paid by the petitioner under protest.

5. Pursuant to the directions issued by this Court on 24.11.2021 in the earlier writ petition filed by the petitioner, the impugned order dated 04.07.2022 came to be passed by the second respondent rejecting the petitioner’s request for refund of a sum of Rs.3,01,01,534/- deposited by them with the Customs Department during DRI investigation. According to the petitioner, any amount deposited by the petitioner during DRI investigation on the advise of DRI has to be treated as a payment made under protest. The petitioner also claims that the order dated 24.11.2021 passed in the earlier w