VENKATASWAMI, J


This batch of 54 writ appeals can be disposed of by this common judgment as the only substantial issue raised in all these cases is common. The issue is, whether the goods imported by the respondents answered the description of 'Stainless Steel Plates and Sheets' as contained in Item 63 (20-A) appearing in the First Schedule to the Indian Tariff Act as contended by the appellants/Revenue or fell under Item 63(14) which is to the effect 'Cold rolled hoops and strips of stainless steel of 250 mm. width or more' as contended by the various respondents/importers. If the goods imported are found to fall under Item 63(20-A), then the duty payable by the respondents will be at the rate of 100%ad valorem. If, on the other hand, the goods imported are found to fall under item 63(14), the duty payable will be 40%ad valorem. A subsidiary question that might arise if the goods are found to fall under Item 63(14) is, whether the duty at the rate of 40%ad valoremis further reducible by applying the Notification No. 118, Customs, dated 20.8.1965 (hereinafter referred to as the notification).


2.Before entering into the controversy as such, let us give the admitted facts. All the respondents/importers had actual users licences to import stainless steel sheets. On the basis of such import licences, they imported the goods and declared before the Customs Authorities that the goods imported were stainless steel sheets in coils. Accepting the declaration of the importers, the Authority levied duty at the rate of 100%ad valoremin accordance with Item 63(20-A). The respondents importers, after paying the duties so levied, cleared the goods, and thereafter preferred applications for refund of the excess duty paid by them on the ground that the goods imported were exigible to duty only under Item 63 (14) read with the notification. The Assistant Collector found in 48 out of 54 cases the applications were time barred under section 27(1) of the Customs Act and therefore rejected the same on that ground. Such orders of the Assistant Collector had been subsequently confirmed by the appellate Authority and by the Government of India, Revisional Authority. In six cases where the applications for refund of excess duty were filed in time, the Assistant Collector considered them on merits and found that the goods imported were stainless steel sheets and, therefore, the duty already levied was in accordance with Item 63 (20-A) and such orders of the Assistant Collector on merits as well were confirmed by the Appellate Authority and by the Revisional Authority.


3.Aggrieved by the rejection of the claim for refund of excess duty as mentioned above, the respondents/exporters had moved this Court for the issue of writs of certiorari to quash the orders of the appellants and for consequential relief.


4.The first writ petition that came up for final disposal was W.P. No. 3993 of 1974. In that case, the application for refund of excess duty was turned down by the authorities as time barred by invoking section 27(1) of the Customs Act. Therefore, there was no occasion for the authorities to consider the case on merits. The Counter affidavit filed in W.P. 2993 of 1974 also supported the order of rejection of claim for refund of excess duty only on the basis that the application was time barred. Koshal, J. (as he then was), before whom W.P. 3993 of 1974 came up for final disposal, was of the view that notwithstanding the rejection of the application for refund of the excess duty as time barred under section 27(1) of the Customs Act, relief could be granted to the aggrieved party under Article 226 of the Constitution if the excess levy was found to be illegal. Before the learned Judge, reliance was placed heavily on the contents of the compilation published by the Indian Standard Institution entitled "Glossary of Terms relating to Iron and Steel" by the counsel for the importers/petitioners. The fact that the terms "plates", " sheets"and" strips" are not defined in the statute book was also brought to his notice. For the Revenue, reliance was placed on the instructions issued by the Central Board of Revenue and Customs on the customs side in the year 1934 and reproduced at page 436 of the 14th Edition of Compilation headed

"Indian Customs Tariff Guide'. As between these two positions, the learned Judge preferred the one relied on by the counsel for the importers/petitioners. The learned Judge observed as follows :-" *


The Central Board of Revenue and Customs has not indicated in the instructions above extracted the background thereof or the reason why various pieces of iron or steel were classified as stated. It may, however, be that the classification adopted by the Board was in conformity with the trade meanings of the terms "strips'," sheets

"and "plates" as assigned to them by the trade way back in 1934. Much water has flown under the" *


bridges since then and India is a far more developed country industrially than it was in the thirties, and the contents of the compilation published by the Indian Standards Institution referred to above appears to me to be a far more reliable guide for the purpose of the classification in hand then the instructions issued by the Board in that behalf more than 40 years earlier. In coming to this conclusion, I have been influenced not only by the high authority from which the compilation last mentioned proceeds and the foreword contained therein, but also by the fact that since 1965 the Board itself has adopted that classification for the purpose of levying Central Excise duties.

"On that view, the learned Judge agreed with the contention advanced on behalf of the importer that the goods imported were to be treated as cold rolled strips of stainless steel or more than 250 mm. width falling within the ambit of the notification and further directed the refund of excess duty thereon.


5.It may be mentioned here that all the other writ petitions were disposed of following the judgment in W.P. 3993 of 1974. No independent reasons were given. As noticed above, out of 54 appeals, six cases belong to a different category, in the sense that in those cases, the applications for refund of excess duty were disposed of on merits and in fact, the revisional orders of the Government of India are speaking orders. Unfortunately, those cases also were disposed of by merely following the judgment in W.P. 3993 of 1974 and the reasons given in the revisional order were not brought to the notice of the learned Judges who disposed of those cases.


6.The Revenue, aggrieved by the orders of the learned single Judge, ordering the refund of the excess duty, has preferred these appeals.


7.In our view, it would be a better approach first to deal with those six cases in which the applications for refund of excess duty were disposed of on merits. Because, we find from the papers that the Revisional Authority has considered several aspects touching the issue and has rendered its finding. We find from the orders of the Revisional Authority that in all the six cases, the same learned Counsel represented all the importers and he was heard orally by the Revisional Authority. After hearing the counsel, the Revisional Authority has rendered its finding, both on facts and on law. We may also point out that the statement of facts and the findings on facts given by the Revisional Authority has not been challenged by the importers in the affidavits filed in support of the writ petitions. Therefore, we proceed on the footing that the statement of facts and the findings given on facts by the Revisional Authority are correct, we also consider that any decision taken with reference to these six cases will equally apply to the rest of the appeals as it is common ground that the goods imported and other circumstances in all these cases are the same. We have also noticed that the revisional orders of the Government of India, though independent, substantially they are common in substance. Therefore, extracts taken from any one of the orders of the Revisional Authority will be applicable to the other cases in this sub group of six cases. The following extracts from the revisional order will not only be helpful but also relevant to decide the dispute in these cases :" *


The advocate submitted that in this case the goods were described as stainless steel sheets in the relative invoices. In the manufacture certificate dated 29-12-1972 forwarded by the petitioners under their letter dated 3-10-1973 the goods are described as prime quality stainless steel sheets in coils. In the Bill of Entry also, the petitioners themselves declared the goods as stainless steel sheet. These facts are not disputed. It is true that declaration by the foreign suppliers or the importers cannot alone be made the basis for classification of goods under the Indian Customs Tariff, but it is also equally true that such declaration is not inconsequential. If the Department finds that such declaration represents the true and correct character and nature of goods in the trade, it is accepted, there is no bar on basing the classification on the declaration of the goods in the invoices and declaration in the Bill of Entry. In fact, normally the classification is based on the description in the invoice and the Bill of Entry unless facts are contrary and there is a misdeclaration. The invoice description is also indicative of the fact that in the country of shipment, the goods are commercially known and marketed as

"sheets'. The invoice was prepared in response to the Petitioner's order. The description of the goods in the invoice as stainless sheets confirms that the petitioners themselves placed the order for stainless sheets and in doing so they were no doubt reflecting the fact that these goods are known as sheets in the commercial parlance of the country. They would not have called the impugned goods as "sheets" if these were not so known in the trade, and commercial parlance of the country. Not only the petitioners and their suppliers described the same as goods as 'sheets' when such a large number of importers as foreign suppliers declare the goods as sheets, it evidently proves that both in the country of shipment and country of importation, these goods are commercially known as sheets.The facts narrated in the preceding paragraph reveal the commercial concept about 'sheets'. In view of this position, it cannot be accepted that the dimensions given in the I.S.I. specification are followed by the trade. If they were following the I.S.I. specification, they would not have called the impugned goods as 'sheets'. When the I.S.I. specification is not followed by the trade, the contention that it has codified the term and concept of stainless 'strips' and 'sheets' and that it represents the popular definition of these terms is not acceptable on the facts of the case.


Moreover, in the I.S.I. specification the dimensions, width, etc. of wide strips and sheets overlap. The I.S.I, differentiates between 'wide strip' and 'sheet' only on the ground whether it is supplied in straight length or in coil form. The Government observes that the same goods can be supplied in straight length or in coil form. Thus, the mode of supply is not a sound criterion for distinguishing one item from another or commercially labelling them as two different items. Moreover, the dimensions of 'strips' and 'sheets' given in the IS 1956 : 1962 (as amended) vary with the dimensions given in the Brussels Nomenclature and the specifications of AISI viz., American Iron and Steel Institute." *


According to A.I.S.I., a 'sheet' has width of 24 inches and over and a 'strip' has width of under 24 inches (24 inches are equivalent to 609.6 mm. approximately). Thus, according to AISI, a sheet has width of 609.6 mm or more and strip has width of less than 609.6 mm. The impugned goods have been supplied as per AISI 304 as indicated in the invoice itself and according to AISI specification the impugned goods are 'sheets'. Thus even the specification, according to which the goods have been manufactured, controverts the petitioners and claim that these are 'strips'.

"8.Let us now set out the rival contentions. Mr. Narasimhan, learned Senior Standing Counsel for the Central Government submitted that when the importers admittedly had only actual users' licences for the import of stainless steel sheets and Bills of Entry as well as their declaration also to the effect that what they had imported were only stainless steel sheets, it is not open to them after clearing all the goods, to come forward with applications for refund of excess duty contending that they had imported only steel strips. If only they had declared that they had imported stainless steel strips, the Customs Authorities would not have allowed them to clear of the goods. Now, the goods themselves are not available for factual verification. Under Section 46(4) of the Customs Act, 1962, the declaration must have been supported by proper records. The Authority, after satisfying himself with the declaration supported by records, must have permitted clearance of the goods. In as much as the assessment and levy of duty was made on the basis of the invoice and the declaration made by the importer, it is not open to the importer later on to turn round and say that the declaration given by him was incorrect. He also contended that unless the assessment are successfully challenged, the rejection of the petitions on the basis of bar of limitation cannot be questioned and, therefore, the writ petitions are liable to be dismissed. In support of his contentions, he citedMadras Rubber Factory Ltd. v.Union of India and Othersreported in andD. Cawasji & Co.v.State of MysoreReported in. He also cited an order of the Supreme Court in C.A. 1633 of 1984 dated 6.4.1984 (Miles India Limitedv.The Assistant Collector of Customs) wherein the Supreme Court, while permitting the appellant to withdraw the appeal, has observed thus :-" *


We accord their leave to withdraw the appeal, but make it clear that the order of the Customs, Excise and Gold (Control) Appellate Tribunal suffer from no infirmity. If really the payment of the duty was under a mistake of law, the appellant may seek recourse to such alternative remedy as it may be advised.

"9.Mr. K.C. Rajappa, learned Counsel appearing for all the respondents/importers, submitted that all the decisions cited by the learned Counsel for the appellant are not relevant to the facts of this case. It is well-settled that in the event of this Court finding that this levy of excise duty was illegal, then it is open to the court in exercise of jurisdiction under Article 226 of the Constitution to order refund notwithstanding the limitation prescribed under section 27(1) of the Customs Act. For this contention, he cited two Division Bench judgments of this court inThe Assistant Collector of Customs, Madras v. Premraj and Ganapatraj Co. Madras Electrical Conductors (P) Ltd. reported in 90 L.W. 719 and Dugra Shankar Industries Vijayawada v. The Government of India, Ministry of Finance, Department of Revenue and Insurance; New Delhi and Anotherreported in 1979 ELT 227.


10.He next contended that the authorities should have considered first the issue whether the goods imported were stainless steel sheets or strips before rejecting the applications for refund as time barred. The Revenue cannot retain the duty illegally collected in excess of authorised levy in violation of Article 265 of the Constitution of India. To such cases, section 27 (4) of the Customs Act, 1962 cannot be pressed into service by the Revenue. He also submitted that it is only after the assessment is over and the goods are cleared, the question of claiming the refund will arise. Therefore, there is no force in the argument of the learned Counsel that it is not open to the importers to apply for refund of excess duty after the clearance of the goods. The learned counsel, however, stated that we can proceed on the footing that in all the cases, the actual users' licences were only for stainless steel sheets and the contract with the foreign seller was only for stainless steel sheets. His contention is that the stainless steel sheets imported were of the variety of stainless steel cold rolled. If the stainless steel imported is of cold rolled, notification 118 applies irrespective of width and the same can be subjected toad valoremduty of 10% only. According to the learned counsel, the I.S.I., specifications can be called in aid in understanding the terms of the entries occurring in items 63(14) and 63 (20-A) of the Indian Tariff Act. If so understood, the conclusion reached by the learned judge cannot be successfully challenged. According to the learned counsel, the specifications of the Indian Standard Institution had been taken legal notice of can be seen from the judgment of the Supreme Court inUnion of Indiav.Tata Iron & Steel Co. reported in andIndian Aluminium Cables Ltd.v.Union of Indiareported in. He also cited certain passages from George S. Brady on 'Materials - Hand Book', A.D. Merriman Dictionary of Metallurgy, Metals Hand Book published by American Society for Metals, for the purpose of understanding the meanings of the words 'sheets' and 'strip'. His further contention is that apart from the dictionary and other technical meanings, it has been repeatedly held by the Supreme Court that the terms in Fiscal Statutes must be given the meaning as understood by the trade. If that test is applied, the goods imported must be classified as 'steel strips'. In support of this proposition, the learned Counsel citedDelhi Cloth & General Mills Co. Ltd.v.State of Rajasthanreported in

11.Lastly, he contended that if there is delay in approaching the Authorities and in approaching this Court, in cases where the delay is not more than three years, the relief can be granted. In support of this contention, he relied onShri Vallabi Glass Works Ltd.v.Union of Indiareported in.


12.As we pointed out earlier, we propose to deal with first the sub group consisting of six appeals in which the revisional Authority has passed speaking orders. It is seen from the order of the Revisional Authority and it is also not disputed before us that all the petitioners (importers) had only actual users' licences for the import of stainless steel sheets. The contract with the foreign seller was also for the import of stainless steel sheets. Though in two cases, namely, cases relating to M/s. Paxal Corporation Limited, Writ Appeal 238 of 1978 and Writ Appeal 7 of 1979, an attempt was made before the Revisional Authority to show that what was imported was strip', the same was not accepted by the Revisional Authority on facts, and the Revisional Authority gave a finding on the basis of well-considered reasoning that the entry in the invoice as strips' was a wrong description. This finding has not been challenged in the affidavits filed in support of the writ petitions. Therefore, in all these six cases, the import was of 'stainless steel sheets'. It is also common ground that while clearing the goods, a declaration was given to the effect that the goods imported were stainless steel sheets. From this, it is clear that the importers as well as the foreign seller understood the 'goods' commercially as stainless steel sheets. If the Revisional Authority had taken note of these facts and rejected the applications for reassessment and consequentially refund of the excess duty, we do not find any good reason to interfere with such finding which is based on sufficient relevant materials. If the trade had understood the goods imported as stainless steel sheets, it is not for the respondents/petitioners to contend that applying the I.S.I. specifications, the goods imported must be classified as 'strips'. the Supreme Court has held thus :-" *


In determining the meaning or connotation of words and expressions describing an article of commodity the turnover of which is taxed in a sales tax enactment, if there is one principle fairly well-settled, it is that the words or expressions must be construed in the sense in which they are understood in the trade by the dealer and the consumer. It is they who are concerned with it, and it is the sense in which they understood it that constitutes the definitive index of the legislative intention when the statute was enacted.

"In view of this, it is unnecessary for us to refer to the I.S.I. specification or various text books relied on by the learned Counsel for the respondents. We have held earlier that we do not find any good reason to differ from the conclusion of the Revisional Authority that the goods imported were understood commercially both in the country of shipment and in the country of importation as stainless steel sheets. In that view, if we once come to that conclusion, the consequence will be that the duty already levied was quite in accordance with Item 63 (20-A), and the question of refund as claimed by the respondents/importers will not arise. Consequently, the controversy also is narrowed down very much.


13.The contention of Mr. Rajappa that assuming that the goods imported were stainless steel sheets even then the same are liable for lesser duty at the rate of 10%ad valoremas they were cold rolled. On this aspect, the Revisional Authority had observed as follows :-" *


Moreover, the invoice does not state that the goods are cold rolled. They were not tested and, therefore, they cannot be taken as cold rolled product.

"The goods are not available for testing. To get over this, the learned Counsel for the respondents produced before us two Xerox copies of invoices and certain Bills of Entry. In these two invoices, while the main reference was to the effect 'stainless steel sheets in coils', in the description portion, the words 'cold rolled' are found. We are not prepared to take the description in the invoices in view of the fact that in one of the cases at least, dealt with by the Revisional Authority; there was mis-description in the invoice. Moreover, on the basis of two Xerox copies of invoices alone, we cannot presume that the goods imported were cold rolled particularly when the goods themselves are not available for testing in case of necessity. Above all, one more relevant material as pointed out in the revisional order is that the goods imported have been supplied as per AISI 304 as indicated in the invoice itself and according to AISI specification, the goods dispatched are 'sheets'. Therefore, even the specification according to which the goods have been manufactured, controverts the importers' claim that these are 'strips'. By their own conduct, the importers avoided any such test by the authorities at the earliest possible time. The conduct of the importers also makes this Court not to exercise the discretion even if it is to be exercised in their favour. The Revisional Authority ultimately found that 'since the goods in question are not cold rolled 'strips', any reference to the notification No. 118 of 65 is not relevant and no benefit under it can be validly or appropriately claimed'. We are inclined to hold this finding of the Revisional Authority is mostly based on facts presented before it and the same has to be accepted as the facts presented before the Revisional Authority are not in dispute.


14.The above discussion will equally apply to the rest of the cases as the goods imported were the same under similar circumstances. We have already pointed out that when the learned Single Judge rendered the decision in W.P. 3993 of 1974, the facts as are made available to us were not before him. The learned Judge preferred to adopt the I.S.I. specifications rather than the instructions given by the Central Board of Revenue and Customs on the Customs side in the year 1934. The learned Judge has observed as follows :" *


Learned Counsel for the respondents, on the other hand, has vehemently contended that 'sheets' and 'strips' are distinguishable from each other according to the instructions issued by the Central Board of Revenue and Customs on the Customs side in the year 1934 and reproduced at page 436 of the Fourteenth Edition of the compilation headed 'Indian Customs Tariff Guide' and published by the Government of India. Those instruction, in so far as we are concerned therewith, are to the following effect :


If this classification were adopted, it would, no doubt, strike at the very basis of the claim made by the firm. But when I do not think it represents correctly, the meanings assigned to the terms 'strips', 'sheets' and 'pl

ates', as they have been understood by the trade in the recent past. The Central Board of Revenue and Customs has not indicated in the instructions above extracted the background thereof or the reason why various pieces of iron or steel were classified as stated. It may, however, be that the classification adopted by the Board was in conformity with the trade meanings of the terms 'strips', 'sheets' and 'plates' assigned to them by the trade way back in 1934. Much water has flown under the bridges since then and India is a far more developed country industrially than it was in the thirties, and the contents of the compilation published by the Indian Standard Institution referred to above appears to me to be a far more reliable guide for the purpose of the classification in hand than the instructions issued by the Board in that behalf more than 40 years earlier. In coming to this conclusion, I have been influenced not only by the high authority from which the compilation last mentioned proceeds and the forward contained therein, but also by the fact that since 1965 the Board itself has adopted that classification for the purpose of levying Central Excise duties.'15.If only the facts as presented before us had been brought to the notice of the learned judge, we do not consider the learned judge would have come to this conclusion. Further, it would have been unnecessary for the learned judge to go into this question once the goods imported were found to have been treated commercially both in the country of shipment and in the country of importation as stainless steel sheets. Any reference to the meanings given by the Dictionary or other Standard Institution will not arise on the facts of these cases. As we have independently arrived at a conclusion that the goods imported were stainless steel sheets, satisfying the description found in Item 63(20-A), we need not go into the correctness or otherwise of the other reasoning given by the learned judge. Likewise, we need not go into the other points raised by the learned Counsel for the respondents such as jurisdiction of this Court under Art. 226 in the light of Sec. 27(1) of the Customs Act. On the finding given by us, the judgment of the learned judge has to be set aside. 16.We do not find any need to go into the decisions cited by the learned Counsel on both sides as the findings given by us to the effect that the goods imported were 'stainless steel sheets' answering the description in Item 63(20-A) is based substantially on the facts presented before the revisional authority and also before us. 17.In the result, all the writ appeals are allowed, the judgment in the writ petitions are set aside and the rulesnisiare discharged. No costs. Leave to appeal refused.