Refund of additional customs duty is mandated when petitioners adopt a legitimate conversion factor for timber measurement, affirmed by past rulings.

JUDGMENT

[WP(C) Nos.15946/2011, 7381/2012, 11115/2012, 17829/2011, 20978/2011, 28040/2011, 28212/2011, 28220/2011, 29872/2011]

....

In all these cases, the issue involved is regarding the refund of additional customs duty paid for the import of timber from Myanmar and other foreign countries. The centre of controversy is the conversion factor to be applied for converting the Hoppus Ton, which is the traditional unit of volume applied in Myanmar for the measurement of logs, to the metric system followed in India i.e, the cubic meter. The petitioners have imported the goods by declaring the conversion factor by treating it as one 1 Hoppus ton is equal to 1.416 cubic meters, whereas, the conversion factor applied by the Department was 1 Hoppus ton is equal to 1.8027 cubic meters.

2. In all these cases, the petitioners have imported goods from Myanmar and in the documents furnished by the petitioners for the purpose of customs duty, the quantity was declared in terms of the conversion factor calculated @ 1 Hoppus ton is equal to 1.416 cubic meters. Later, when the petitioners have sought for refund of the additional customs duty paid by them in the light of the Notification No.102/2007 Customs dated 14.9.2007 which is produced as Ext.P1 in WP(C)No.17829/2011, the entire refund was not granted in view of the fact that, as per the standards adopted by the respondent-Department, the conversion factor to be applied is 1 Hoppus ton is equal to 1.8027 cubic meter. Thus, only a portion of the refund was allowed and to release the goods, a provisional duty bond was directed to be furnished by the petitioners. Such an insistence of bond was made in view of the fact that, the issue regarding the proper conversion factor was pending in appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT) filed by the Department against a series of Orders-in-Original passed by accepting the conversion factor followed by the petitioners. It was in these circumstances, these writ petitions were filed. In WP(C)No.17829/2011, the following reliefs were sought:

“i) To call for the records relating to Exts P1 to P11 and to issue a writ of certiorari quashing Ext.P8 demand directing to execute Provisional Duty Bond for clearance and release of the goods of the petitioner imported through Cochin Port covered by Bill of Entry No.3504156 dated 16.5.2011 and Ext.P6 Duty Chellan.

ii) To issue a writ of mandamus commanding the 2^nd respondent to order release of the petitioner’s goods (Teak Wood) covered by Bill of Entry No.3604156 dated 16.5.2011 and Ext.P6 Duty Chellan.

iii) To issue a writ of mandamus declaring that the 2^nd responent has no right to demand for the execution of any Provisional Duty Bond for the clearance of imported wood reached from Myanmar Port belonging to the petitioner for which duty is to be paid under the Customs Act and Customs Tariff Regulations before clearance of the goods and to declare such demand made by the 2^nd respondent as void and unenforceable and without jurisdiction

iv) Any other appropriate writ, order ore citon also may be granted to meet out justice under the circumstances of the above case.”

3. In the other writ petitions also, similar reliefs are sought by making a claim of refund of the entire additional customs duty by adopting the conversion factor as 1 Hoppus ton is equal to 1.416 cubic meters. During the pendency of these writ petitions in WP(C)No.17829/2011 and some of the connected cases an interim order was passed by this Court on 1.12.2011. In the said interim order, this Court took note of the fact that, various customs houses in the country are adopting different conversion factors; in some of the customs house, conversion factor is adopted is 1 Hoppus ton is equal to 1