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2016 (8) TMI 184 - DELHI HIGH COURT

2016 (8) TMI 184 - DELHI HIGH COURT - 2016 (340) E.L.T. 88 (Del.) - Claim of refund of excess CVD paid on import of mobile handsets including cellular phones. - mobile handsets including cellular phones - Held that:- it is not open to the Authority to refuse to consider the application for refund only because an appeal has not been filed against the assessment order. - With the Petitioner having already placed all the relevant documents on record and with the only reason for rejection of the .....

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- Decided against the revenue cost. - W.P.(C) 6750/2016 - Dated:- 3-8-2016 - S. MURALIDHAR & NAJMI WAZIRI JJ. Petitioner Through: Mr. Tarun Gulati, Mr. Shashi Mathews, Mr. Sparsh Bhargava, Mr. Ankit Sachdeva, Mr. Kishore Kunal, Mr. Manish Rastogi and Ms. Rachana Yadav, Advocates Respondents Through: Ms. Saroj Bidawat, Advocate for Respondent No.1 Mr. Pramod Kumar Rai, Senior Standing Counsel with Mr. Deepak Anand, Junior Standing Counsel for Respondent Nos. 2, 3 & 4. O R D E R Dr. S. Mu .....

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3 (1) of the Customs Act, 1962 ('Act') read with Serial Number 263A and condition no. 16 of Notification No. 12/2012-CE dated 17th March 2012 (as amended). 4. The Petitioner company sells, inter alia, electronic products such as mobile phones etc. As part of its business activities, the Petitioner imported mobile handsets including cellular phones. 10 Bills of Entry (B/Es) were filed by it in January 2015 - February 2015. On these B/Es, the Petitioner paid additional customs duty (commo .....

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t is stated that the above condition regarding non-availing of CENVAT credit on inputs or capital goods was interpreted by the Supreme Court in SRF Ltd. v. Commissioner of Customs 2015 (318) ELT 607 (SC). The Supreme Court explained that for quantification of CVD in case of imported goods, it would have to be presumed that the imported goods were manufactured in India and the excise duty leviable thereon would then have to be ascertained for determining the extent of exemption from payment of CV .....

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ry and challans evidencing payment of customs duty; b) Working sheet detailing the amount of excess duty paid under Section 3(1) of the Customs Tariff Act, 1975; c) Details of Customs House Agents; d) Copy of judgment of the Supreme Court in SRF Ltd. v. CC; e) An affidavit stating that the claim for refund is not barred by limitation and the refund amount would not be used in subsequent refund applications. 7. The claim was examined by the Deputy Commissioner (Refunds) (Respondent No. 4) and a m .....

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he Petitioner replied to the above memorandum on 18th February, 2016 inter alia pointing out that under Section 27 of the Act there was no requirement of getting the B/E re-assessed for the purposes of claiming refund. Three decisions of the Customs Excise and Service Tax Appellate Tribunal were referred to by the Petitioner. 9. It may be mentioned at this stage that in its recent decision in Micromax Informatics Ltd. v. Union of India 2016 (335) E.L.T. 446 (Del.), this Court clarified the legal .....

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as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any duty or interest as claimed is refundable to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the cla .....

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ion. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In other words, under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. 10. On 3rd March, 2016 Respon .....

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ejected the Petitioner's refund application. As far as the decision of the Supreme Court in SRF Ltd (supra) was concerned, Respondent No. 4 chose to highlight in bold letters in the impugned order the fact that the Department had filed a review petition in the Supreme Court which had been admitted and was pending consideration. As far as the decision of this Court in Micromax Informatics (supra) was concerned, Respondent No.4 again highlighted in bold letters in the impugned order that the a .....

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ter has failed to fulfil the basic condition for claiming of excess payment of customs duty under section 27 (1) (a) of the Customs Act, 1962. I find there is no proof of excess payment of custom duty in respect of Bill of entries filed by the party from the period 02.01.2015 to 10.02.2015 as these are finally assessed Bills of Entry and the party has also failed to submit the reassessed Bills of Entry as per benefit claimed by them . Thus the claim is not admissible and liable to be rejected. 1 .....

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nance Corporation Ltd. 1991 (55) ELT 433 (SC) the Supreme Court observed as under: 6. Sri Reddy is perhaps right in saying that the officers were not actuated by any mala fides in passing the impugned orders. They perhaps genuinely felt that the claim of the assessee was not tenable and that, if it was accepted, the Revenue would suffer. But what Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual malafides but with the fa .....

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that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities; The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the hi .....

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tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect..... The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the iss .....

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hands of the same officer. He has only to bring the matter to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under Section.35-E (1) or (2) to keep the interests of the department alive. If the officer's view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail. 8. We have dealt with this aspect at some length, because it has been suggested by the learne .....

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proper spirit. The observations of the High Court should be kept in mind in future and the utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orders of the higher appellate authorities which are binding on them. 13. In E.I. Dupont India Pvt. Ltd. v. Union of India 2014 (305) ELT 282 (Guj.) the Gujarat High Court referred to the law explained in Legrand (India) Pvt. Ltd. v. Uni .....

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joined the department in the year 2011 and the unconditional apology tendered, we close the proceedings so far as the proceedings under the Contempt of Courts Act are concerned. 14. Learned counsel for the Respondents were unable to defend the impugned order which has been clearly passed in defiance of the binding decisions of the Supreme Court and this Court. As already noted there was no justification for Respondent No.4 to ignore the binding decisions only because an appeal was filed in which .....

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