1. 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 2nd 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 2nd 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 2nd 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 1.416 cubic meters, whereas, in some other customs house 1 Hoppus ton is equal to 1.802. Taking note of the aforesaid discrepancy, a direction was issued by this Court as per the said interim order to the Central Board of Excise and Customs, to examine the matter and issue appropriate clarification as to which of the two conversion factors are to be adopted and followed by the Customs Houses throughout the country. Based on the interim order, a decision was taken in this regard and a public notice No.21/2012 dated 11.5.2012 was published, wherein, it is provided that the conversion factor should be 1 Hoppus Ton is equal to 1.8027 CBM. It was ordered that, this shall be adopted by all the Customs formations to determine the quantity imported and quantity sold on payment of VAT.

4. Today when the matter came up for consideration, Sri.T.M.Abdul Latiff, the learned counsel for the petitioners brought to the attention of this Court, the common order passed by the CESTAT in a batch of appeals consisting of 136 cases, where the refund on the basis of the conversion factor based on public notice No.21/2012 dated 11.5.2012 was sought. The orders which were under challenge in those appeals were passed by the 1st appellate authority, wherein, it was found that the conversion factor for converting the measurement of the timber logs imported in terms of weight, the formula modified in the Public Notice on 11.5.2012 will be applicable only in respect of imports made after 11.5.2012. After examining the public notice referred to above, and the interim order passed by this Court in this case, the appeals were rejected by the appellate tribunal by upholding the finding of the 1st appellate authority that the said public notice and the conversion factor stipulated therein are applicable only in respect of the imports made after 11.5.2012.

5. It is reported that, the said order of the CESTAT, a copy of which is produced as Ext.P26 in WP(C)No.17829/2011, has become final and no appeal has been submitted so far, even though the said order was passed in the year 2013. The entire contentions raised by the learned counsel for the petitioners are based on the same and he is seeking the benefit of the said order to the petitioners herein, as they are similarly situated parties. On the other hand, the specific contention raised by the learned Standing Counsel for the respondents is by placing reliance upon public notice No.21/2012. It is pointed out that by the learned Standing Counsel that, the said order cannot be ignored, as the same was passed based on the interim order passed by this Court in some of these writ petitions and hence it is to be followed even while deciding the said question.

6. After carefully going through the records, I am of the view that, since the CESTAT has passed an order, after taking note of the public notice No.21/2012 dated 11.5.2012 and the interim order passed by this Court, the benefit granted to the parties therein are to be extended to the petitioners as well. This is particularly because, there is no dispute that the petitioners are similarly situated persons to that of the parties in the appeals referred to above. It is also evident that, as far as the conversion factor to be applied is concerned, divergent practises were followed by different customs houses applying different conversion factor. Therefore, the petitioners cannot be found fault with, in adopting a conversion factor which was most beneficial to them.

7. Apart from the above, another crucial aspect to be noticed is that, in one of the cases of M/s. National Timbers, the petitioner in WP(C)No.17829/2011, earlier, when the matter came up before this Court, a direction was issued by this Court in the judgment in WP(C)No.2566/2009 and connected cases, to the authorities to conduct a physical verification of the timber available in the yard of the Customs and to find out actual quantity in terms of cubic meters. Based on the same, a physical verification was conducted of the timber available at the relevant time, and based on the same, an Order-in-Original was passed by the Intelligence Officer (III), Department of Commercial Taxes, Ernakulam on 5.8.2010. In the said case, the commercial invoice was taken for measurement, where the volume of timber logs were shown as 69.746 Hoppus ton and the corresponding cubic meter was 98.760, by applying the conversion ratio 1 Hoppus ton is equivalent to 1.416 cubic meter. On actual measurement of the volume found in cubic meter, it was found to be less than the volume found in the commercial invoice; to be precise, 97.770 cubic meters. It was also found in the said order that, if the conversion ratio as claimed by the Department which is 1 Hoppus ton is equivalent to 1.802 cubic meters is taken, the total quantity would have been 125.682 cubic meters. Thus, based on the said finding, the contentions of the party therein were upheld by applying the conversion factor of 1 Hoppus ton is equal to 1.416 cubic meters. Thus, on going through the results of the physical measurement also, the conversion factor relied on by the petitioners appears to be correct. Moreover, in the order passed by the CESTAT, the finding of the First appellate authority was upheld which was to the effect that the public notice dated 11.5.2012 where the conversion factor fixed as 1 Hoppus ton is equal to 1.8027 cubic meter, was found to be applicable, only in respect of imports made after 11.5.2012. Evidently, in all these cases, the imports which are the subject matter of the dispute, are made before the said date. In such circumstances, in the light of the aforesaid CESTAT order, where the application of the conversion factor relied on by the petitioner was upheld and benefits were extended to the parties therein, I do not find any reason to take a different stand in these cases.

                  In such circumstances, all these writ petitions are disposed of quashing the impugned orders with a direction to the authorities concerned to grant refunds by applying the conversion factor as 1 Hoppus ton is equal to 1.416 cubic meters. Necessary orders in this regard shall be passed within a period of three months from the date of receipt of a copy of this order and the refund shall be effected within a period of one month thereafter.