Home Case Index All Cases Customs Customs + HC Customs - 2019 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 1782 - HC - CustomsDemand on a difference of opinion between the petitioner and the respondent on the classification of Pocket Bricks Game (game) - According to the petitioner, the game is liable to be classified in terms of heading CTH 9503.20, whereas, according to the respondent, it is liable to be classified as 'hand held Brick Video Game', under CTH 9504.30 and CET 9504.90. HELD THAT:- This writ petition deserves to be allowed - the fact that the issue on merits in regard to classification as hand held Brick Video Games has been confirmed by the Tribunal is admitted by the Revenue. In such a case there is some merit in the stand of the petitioner that the same rationale would and should apply in his case as well. This position does not change merely because the challenge to the assessment is belated and the assessment and consequent demand have attained finality. The Classification of the goods and the taxability thereof should be no different in the case of the petitioner and/or other similarly placed assessees. A Division Bench of this Court in the case of RAYALSEEMA CONSTRUCTIONS AND ANOTHER VERSUS DEPUTY COMMERCIAL TAX OFFICER, MANNADY DIVISION, MADRAS 1 AND OTHERS [1959 (2) TMI 23 - MADRAS HIGH COURT] considered a challenge to recovery proceedings in a case where the assessment had become final and had not been carried further in Appeal. The issue in that case related to the taxability of works contract. The Division Bench states that pursuant to the framing of assessments in that assessees' case, the law had stood amended. The Division Bench was of the view that such law would apply uniformly to all similarly and identically placed assesses. Thus, notwithstanding that the assessments in that case had become final and though there were neither appeals filed or in some cases, appeals that had failed on one ground or the other, the Division Bench after a detailed exposition of law, expressed the view that the impugned recovery action would fail. Thus, where a demand emanates from an order of assessment which is without authority, as in the present case where the issue on merits has been held in favour of the assessee and such decision accepted by the Department, judicial review is permissible subject to discretion exercised by the Court. This is an appropriate case for exercise of jurisdiction in terms of Article 226 of The Constitution of India - Petition allowed.
|