TMI Blog2011 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... tition for clarification or modification or approach the superior forum for appropriate reliefs. In the present case, as we have already noticed, the respondents have not questioned the order passed by the High Court, which order has reached finality. In such circumstances, we cannot permit the adjudicating authority to circumvent the order passed by the High Court. Refund claim of appellant has been erroneously rejected by the Deputy Commissioner. - 3478 OF 2006 - - - Dated:- 8-2-2011 - J U D G M E N T H.L. Dattu, J. 1) This appeal is directed against the Order of the Customs, Excise and Gold (Control) Appellate Tribunal, West Zonal Bench [hereinafter referred to as `the Tribunal'] dated 12.05.2006. 2) The issue raised for our consideration and decision in this appeal is: `Whether the adjudicating authority was justified in rejecting the appellant's claim for refund of the duty paid under the Customs Act, 1962 (hereinafter referred to as, "the Act") without considering Essentiality Certificates, produced on a later date, particularly, in view of the specific and positive directions issued by the Delhi High Court.' 3) The brief factual matrix involved in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whilst complying with the abovementioned directions of the High Court, issued recommendatory letters and on the strength of these recommendatory letters, the DGH issued Essentiality Certificates to the appellant. In view of this, the said Writ Petition was finally disposed of by the High Court by its order dated 11.03.2003, wherein the High Court directed the customs authorities to dispose of the appellant's refund claim of customs duty paid by taking into consideration the Essentiality Certificates issued by the DGH in the following terms: "Mr. Setalvad, learned senior counsel for the petitioners, on the other hand, submits that in view of the fact that almost all essentiality certificates have been issued by Respondent No. 2 on the recommendation of Respondent No. 3 the only controversy which survives for consideration is with regard to the disposal of the refund applications filed by the petitioner with the customs authorities. He, therefore, prays that instead of adjourning the matter, it may be disposed of with a direction to the custom authorities to take final decision on the refund applications filed by the petitioner. We find substance in the suggestion made by le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of execution of a decree or order. Further, this Court in Priya Blue (supra), adopting the ratio of the Flock (supra), has held that a refund claim under the Act is not an appeal proceeding and the officer considering a refund claim cannot sit in appeal or review an assessment order made by a competent authority. Such assessment order is final unless it is reviewed and/or modified in an appeal. 11) The learned senior counsel Shri. Harish N. Salve submits that the decisions of this court in Flock (supra) and Priya Blue (supra) are incorrectly decided and require reconsideration. He submits that the present appeal should be referred to a larger bench to finally and correctly decide the questions of law arising in this appeal. He further submits that the appellant is entitled to claim refund by virtue of Section 27 of the Act, even after the assessment order of imported goods has attained the finality. He contends that the claim of refund under Section 27 after final assessment order is different from the refund claim under Section 18, which is after provisional assessment of the imported goods. He submits that Section 27 of the Act provides that the claim for refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting the parties to file their pleadings, further observed that the appellants, if they are willing to get their consignment of spare parts released, may do so by paying the customs duty as demanded under protest subject to final orders in the petition. The writ petition was finally disposed of by the Court by its order dated 11th March, 2003, in the presence of learned counsel for respondents, wherein the Court specifically directed the respondents to consider the refund claims preferred by the petitioners taking into consideration the Essentiality Certificates issued by ONGC. 15) Article 226 of the Constitution confers powers on the High Court to issue certain writs for the enforcement of fundamental rights conferred by Part-III of the Constitution or for any other purpose. The question, whether any particular relief should be granted under Article 226 of the Constitution, depends on the facts of each case. The guiding principle in all cases is promotion of justice and prevention of injustice. In Comptroller and Auditor-General ofIndiav. K.S. Jagannathan, (1986) 2 SCC 679, this Court has held: "20. There is thus no doubt that the High Courts in India exercising their ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er its writ powers was correct and refuse to carry it out as such amounts to denial of justice and destroys the principle of hierarchy of courts in the administration of justice. This court in Bishnu Ram Borah v. Parag Saikia, (1984) 2 SCC 488, has held: "11. It is regrettable that the Board of Revenue failed to realize that like any other subordinate tribunal, it was subject to the writ jurisdiction of the High Court under Article 226 of the Constitution. Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out throughout the territory of India under Article 142 of the Constitution, so should be the judgments and orders of the High Court by all inferior courts and tribunals subject to their supervisory jurisdiction within the State under Articles 226 and 227 of the Constitution. We cannot but deprecate the action of the Board of Revenue in refusing to carry out the directions of the High Court. In Bhopal Sugar Industries Limited v. ITO, (1961) 1 SCR 474, the Income Tax Officer had virtually refused to carry out the clear and unambiguous directions which a superior tribunal like the Income tax Appellate Tribunal had given to him by its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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