Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s ROXUL ROCKWOOL INSULATION INDIA PVT. LTD. Versus UNION OF INDIA AND 8

2016 (1) TMI 959 - GUJARAT HIGH COURT

Jurisdiction to sanction Refund - Customs authorities or SEZ authorities - Refund of additional duty - SEZ unit - According to the petitioner, the respondents collected a sum of ₹ 18,66,985/- by way of countervailing duty, though it was not payable by the petitioner. - Held that:- As long as the duty in the nature of customs duty has been collected, the refund would be payable only in terms of Section 27 of the Customs Act. Since the statute also prescribes the authority competent to enter .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ON NO. 20321 of 2015 - Dated:- 20-1-2016 - MR. AKIL KURESHI AND MR. MOHINDER PAL, JJ. FOR THE PETITONER : MR KAMAL TRIVEDI, SENIOR ADVOCATE assisted by MR HARDIK P MODH, MR NARESH THAKER AND MR AMIT LADDHA, ADVOCATES FOR THE RESPONDENT : MR RJ OZA, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitioner is aggrieved by the respondents not deciding its refund application. In this context, the petitioner has challenged a communication dated 30.11.2015, under which the Assistan .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

im before the concerned customs authority having jurisdiction over the unit. 2.2 The issue regarding who would be the correct authority to process refund claims with respect to units situated in SEZs has been brewing up since quite some time. The respondents authorities are unable to decide such applications on account of certain intradepartmental communications. The situation had come to a stage where for prolonged period, neither customs authorities nor the SEZ authorities would entertain such .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of SEZ units or in some cases buyers of the goods. We would advert to the legal position shortly. However, we must observe that the Government cannot bring about a situation where no authority is left with the power to decide refund applications of the importers. This situation was brought about by the Ministry in its letter dated 1.11.2012. In the letter, as we have noted, while noticing that SEZ Act has overriding effect over other laws, it was also noticed that the SEZ officers were not acce .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f any appeal was pending, same may also be returned for approaching the Department of Commerce. 14. Two things immediately emerge from this letter. Firstly, that the Ministry of Finance also recognised that there was no mechanism under the SEZ Act and Rules framed thereunder for entertaining refund applications and secondly, that the Ministry was of the opinion that such a set up was required to be made by making suitable changes in law. In fact the communication does not stop short at covering .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ory duty. Secondly, if such mechanism was to be changed for SEZ units from the authorities of the Customs Commissionerate to Commissionerate(SEZ), there had to be matching provisions providing such mechanism under the SEZ law. This admittedly was not done. In fact, till date it has not been done. Thirdly, all the refund claims, appeals and reviews were to returned with an advise to approach the Ministry of Commerce. We may recall this communication was issued by the Ministry of Finance. We wonde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

if a valid law is made in order to do so. By a mere letter, Ministry of Finance could not have suspended the power of Commissioner(Customs) to exercise his statutory functions. It is undisputed that duty was collected by the Commissioner of Customs. Whatever be the character of the duty, the Commissioner of Customs collected the same on a perceived opinion that unit concerned was required to pay such customs duty, redemption fine or penalties as the case may be. If later on such duty, fine or p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t such issues can be decided only by the authority under the Customs Act. 16. Section 27 of the Customs Act, 1962 pertains to claim for refund of duty. Subsection( 1) thereof provides for an application to be made by person claiming duty or interest in prescribed form to the prescribed authority within the prescribed time. Sub-section(2) of section 27 authorises the Assistant Commissioner of Customs or the Deputy Commissioner of Customs, if he is satisfied that whole or part of the duty or inter .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the Excise Act as the case may be. It was observed as under: (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter- by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or misinterpreting or misapplyi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nts, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. 18. Under the circumstances, in our opinion, the d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uthority under the Customs Act, 1962, even with respect to units situated in SEZ areas. Whatever refund claims being returned to the petitioners by the Customs Commissionerate, the petitioners would represent the same to the appropriate authority. If the petitioners do so latest by 15.12.2014, all such applications shall relate back to the first presentation before the Customs authority. The period of limitation for presenting such application and computation of interest in case eventually the r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Surat-I (as per Copy of TR6 challan submitted). Further, the administrative control /revenue collection from your unit is with Central Excise & Customs, Bharuch Commissionerate. It is evident that Ahmedabad Customs Commissionerate does not have jurisdiction over your unit. The order of Hon'ble High Court in case of M/s.Anita Exports may be applicable to those Customs Commissionerates who are having administrative control & collecting Customs duty from SEZ units. In the case of M/s.A .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

incorrect. Firstly, in Anita Exports, there were bunch of petitions not having identical facts. It was only for convenience that we had referred to detailed facts in case of Anita Exports. Further, we do not see any material difference so far as the facts of Anita Exports and present case are concerned. The ratio of the decision was that for any customs duty collected, refund application would be maintainable under Section 27 of the Customs Act and such refund application would be maintainable .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version