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Socomec Innovative Power Solutions Pvt. Ltd. (formerly known as Socomec UPS India Pvt. Ltd.) Versus Commissioner of Customs (Appeals) , Assistant Commissioner of Customs (Group 5A)

2016 (6) TMI 751 - MADRAS HIGH COURT

Claim of exemption on import of Uninterrupted Power Supply System 200 KVA Delphys Green Power C6 with Cardboard/Pallet Packing - Notification No.25/2005 dated 01.03.2005, which provides for exemption of Basic Customs Duty for import of Static Converters for automatic data processing machines and units thereof, and telecommunication apparatus - Maintainability of writ petition - Alternative appellate remedy. - Held that:- the right of appeal is a statutory right and where the law provides rem .....

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oner. - Writ Appeal No. 425 of 2016 - Dated:- 6-6-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. Joseph Prabhakar For the Respondents : Mr. A. P. Srivinvas, Standing Counsel for Customs JUDGMENT ( Judgment of the Court was delivered by S. Manikumar, J, and D. Krishnakumar, J ) This Writ Appeal has been preferred against the order of the learned single Judge dated 6.11.2014 made in W.P.No.18676 of 2013 dismissing the Writ Petition on the ground that the writ petitioner appro .....

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e of ₹ 6,99,691.47. The imported machine normally attracts 7.5% Basic Duty, 10% CVD and 4% SAD apart from Cess. As per the Customs Notification No.25/2005 dated 01.03.2005, which provides for exemption of Basic Customs Duty for import of Static Converters for automatic data processing machines and units thereof, and telecommunication apparatus, the appellant company claimed exemption of Busic Customs Duty (BCD) 7.5% as per Sl.No.4 of Customs Notification No.25/2005 dated 01.03.2005 in resp .....

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-heading or tariff item of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India, from the whole of the duty of customs leviable thereon under the said First Schedule, namely:- S. No Heading, Sub-heading or Tariff item Description of goods (1) (2) (3) 4. 8504 40 Static converters for automatic data processing machines and units thereof, and telecommunication apparatus 4. In support of .....

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pany by order dated 03.02.2012. 5. Aggrieved against this order, the appellant preferred a Writ Petition in W.P.No.4095 of 2012 before this Court. Ultimately, by order dated 07.01.2013, the Writ Petition was disposed of with a direction to the appellant to pursue alternative remedy of filing an appeal before the appellate authority. Between June 2012 and January 2013, the appellant imported UPS under various Bills of Entry and paid Basic Customs Duty of 7.5% under protest. Subsequently, the appe .....

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, 202-209/0/2012-Sea passed by the first respondent/Commissioner of Customs (Appeal), Chennai. 6. The learned counsel for the appellant had submitted before the learned Judge in the Writ Petition that as per the Notification No.25/2005 Cus, exemption is available for import of Static Converters (UPS) for automatic data processing machines and units thereof, and telecommunication apparatus and the equipment imported by the appellant is indeed a UPS System, which is meant for automatic data proces .....

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rieved by the order can prefer an appeal to the CESTAT. However, liberty was granted to the appellant to prefer appeal before the CESTAT. Aggrieved by this Order, the present Writ Appeal has been filed by the writ petitioner/appellant. 8. Mr.Joseph Prabakar, learned counsel appearing for the appellant would submit that the first respondent passed a common order in Appeal No.No.468-547/2003 dated 28.3.2013 confirming the findings of the second respondent holding that the order dated 11.1.2010 per .....

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iew of the statutory appeal remedy available before the appellate authority under Section 129-A of the Act. Further, he would submit that these are the disputed facts, which cannot be decided by this Court under Article 226 of the Constitution of India. 10. Heard the learned counsel appearing for the appellant and the learned counsel for the respondents. 11. The appellant is engaged in the business of sale and installation of imported Uninterrupted Power Supply Systems (UPS), which falls under C .....

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ased to dismiss the Writ Petition with liberty to file an appeal under Section 129 of the Customs Act 1962. By a common order dated 28.3.2013, the appellate authority, namely, the first respondent dismissed the appeal along with other Appeals. It was held that the assessee being a trader, had not come out with any un-impeachable evidence to show that the impugned goods are directly used only in IT industries. Therefore, he is not specified with the materials and submissions made by the appellant .....

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mption for UPS, the appellant would submit that the same was not considered by the appellate authority in the present case. Therefore, the appellant filed the Writ Petition without exhausting the alternative remedy, since the issue is already covered by the department order. The respondent department disputed the fact for granting of exemption to the appellant. In support of his contention, the appellant relied upon the decision of the Hon'ble Supreme Court in Camlin Ltd., Versus Commissione .....

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ainable under Article 226 of the Constitution of India without exhausting the alternative remedy u/s.129-A of the Customs Act, 1962? 14. In the case of Liberty Oil Mills Pvt.Ltd., v. Collector of Central Excise reported in 1995 (75) ELT 13 (SC), the Hon'ble Supreme Court has held that in a case of an ambiguity or doubt regarding an exemption provision in a fiscal statute, the ambiguity or doubt will be resolved in favour of the revenue and not in favour of the assessee. In any event, these c .....

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Act. 16. The aforesaid decision of the Hon'ble Supreme Court was followed in the case of Sadhana Lodh Vs. National Insurance Co.Ltd., reported in (2003) 3 Supreme Court Cases 524 and another and held that the right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226 of the Constitution of India. 17. In C.A.Ibrahim v. ITO, AIR 1961 SC 609, H.B.Gandhi v. M/s .....

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