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M/s. Supertron Electronics Private Limited Versus The Union of India, Principal Commissioner of Customs, Deputy Commissioner (Refunds) , Assistant Commissioner Office of the Principal Commissioner of Customs Airport & Air Cargo Commissionerate, Superintendent (Refunds)

2017 (11) TMI 261 - KARNATAKA HIGH COURT

Refund claim - excess customs duty paid under protest - interest on delayed refunds - unjust enrichment - In compliance with the directions of this Court to show cause as to why contempt action should not be initiated against the respondent official for apparently not complying with the judgment of the Hon’ble Supreme Court in the case of SRF LIMITED Vs COMMISSIONER OF CUSTOMS [2015 (4) TMI 561 - SUPREME COURT]. - Held that: - this Court is not inclined to take a lenient and casual approach .....

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unded after the order dated 14.12.2016 was passed by the respondent Deputy Commissioner, Mr. Ravindra Joshi but the tenor of the said order as well as the Affidavit filed in respect of the contempt notices issued by this Court, do not fully satisfy and in inspire any confidence that the respondents, in letter and spirit abide by the judgment of the Hon’ble Supreme Court and still seek a refuge from this Court to keep open for them to hold an enquiry in the matter, which cannot be permitted. - .....

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ent : Mr. K. V. Aravind, Advocate for R2 ORDER The petitioner M/s. Supertron Electronics Private Limited had filed these writ petitions on 22.8.2016 with the following prayers. a) Issue a Writ of Certiorari, or a Writ in the nature of Certiorari, or any other appropriate Writ, Order or direction, quashing the Impugned Order-in-Original passed by the Respondent No.3 dated 31.5.2016 in OIO No.643/2016 (BACC Refunds), produced at Annexure-A1; b) Issue a Writ of Certiorari, or a Writ in the nature o .....

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writ, order or direction restraining the Respondents No.1 to 5, their sub-ordinate, servants and agents from giving any effect and/or further effect to and/or acting on the basis of and/or in furtherance of the Impugned Orders dated 31.5.2016 pending the disposal of the writ petition; e) For such further and other reliefs, as this Hon ble Court may deem fit and proper in the nature and circumstances of the case. 2. In sequence from time to time, this Court had passed detailed interim orders in .....

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hority in the first instance had rejected the refund applications of the petitioner-company seeking refunds of ₹ 58,02,005/- and ₹ 5,82,63,745/- respectively under the two orders, solely on the ground that, the refund of the duty due to the petitioner in accordance with the judgment of the Hon ble Supreme Court in the case of SRF Limited vs. Commissioner of Customs, Chennai, rendered on 26.03.2015 in Civil Appeal No.9440/2003 was refused and not given on the ground that Review applic .....

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l for the petitioner has relied upon the various case laws in support of his contention, the leading among them in the case of Yu Televentures Pvt. Ltd. Vs. Union of India in W.P.(C) No.6750/2016 recently decided by the Delhi High Court on 03.08.2016. 4. Prima-facie, this Court is of the opinion that the respondent-Department ought to have taken suo-motu action to refund the amount of duty due to the petitioner-company atleast after the rejection of their Review petition by the Hon ble Supreme C .....

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ment is called upon to show-cause as to why the responsibility should not be affixed on the erring officials of the respondent-Department in not taking the prompt action for making the refunds due to the petitioner-assessee, without requiring it to approach the court of law and why the costs of litigation incurred by the petitioner-assessee may not be recovered from such erring officials. 6. The petitioner-company may file a statement of expenses incurred by it for this litigation and the respon .....

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ssioner (Refunds) Mr.Ravindra Joshi, has passed an order running into 23 pages refusing to refund the excess customs duty paid by the petitioner-assessee under protest, which became due to be refunded to it in pursuance of the judgment of the Hon ble Supreme Court in the case of SRF Limited -versus- Commissioner of Customs, Chennai, decided on 26.03.2015, while holding that though the refund is due to the petitioner-assessee Company in terms of the said Supreme Court judgment and quantum was als .....

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9.2016 had clearly expressed that the respondent-authority can pass an appropriate order for refunding the excess customs duty paid by the petitioner-assessee. The respondent-authority has shown audacity to refuse to refund on the ground that Section 28-D allows a presumption that the incidence of excess customs duty has been passed to the customers, whereas no such presumption is available to be drawn in the present case and no other evidence has been brought on record by the said authority to .....

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judgment of the Hon ble Supreme Court in a surreptitious manner, by showing disregard to the clear and binding judgment upon him. The learned counsel for the petitioner has also filed statement of costs incurred by the petitioner for litigation, in the present case. A sum of ₹ 59,800/- is shown to be the costs incurred by the petitioner-Company. The respondent-Mr.Ravindra Joshi, Deputy Commissioner (Refunds) is further directed to deposit the said amount of ₹ 59,800/- from his perso .....

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both dated 14/12/2016, refund amounts of ₹ 5,82,63,745/- and ₹ 58,02,005/- respectively have not yet been credited to the Bank Account of the petitioner - Company, the details of which have been given to the Respondent s counsel. 3. He also submitted that the tenor of the aforesaid orders dated 14/12/2016 superseding the previous order is not in good taste and intentionally seeks to put the Court s observations as the reason for passing the same rather than correcting their own mist .....

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ioner also submits that refund amount due to the petitioner has been credited. However, he further claimed that interest part has not been paid. That question will be decided later on. Learned counsel for respondents also prays for some time to file affidavits of both the officers of Respondents-Custom Department, namely, Chief Commissioner of Customs and Deputy Commissioner (Refunds) in pursuance of the order passed by this Court earlier on 20th September 2016, initiating contempt proceedings a .....

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s Limited, 12/1, 1st Floor, CVR Building, Hosur Road, Wilson Garden, Bengaluru - 560 027. 4. In compliance with the directions of this Court to show cause as to why contempt action should not be initiated against the respondent official for apparently not complying with the judgment of the Hon ble Supreme Court in the case of SRF LIMITED Vs COMMISSIONER OF CUSTOMS in CIVIL APPEAL NO.9440/2003 decided on 26.3.2015 against which the review petition filed by the Customs Department was also dismisse .....

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still seeking to reserve with him, the right of investigation in the matter about the incidence of the said duty under protest, as to whether the incidence of duty has been passed on to the customers or not and whether such refund is unjust enrichment of the petitioner or not. This is an effort on the part of the respondent official showing the scant respect to the Hon ble Supreme Court s judgment, which binds all the Courts, Tribunals and Authorities in the Country. 27A. Interest on delayed ref .....

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f receipt of such application till the date of refund of such duty: PROVIDED that where any duty, ordered to be refunded under sub-section (2) of section 27 in respect of an application under sub-section (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till th .....

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eme Court and the refund order passed by the authority himself. 6. As to why contempt action should not be taken against them, the respondent officials, namely, Deputy Commissioner and the Chief Commissioner of Customs have filed their Affidavits dated 6.1.2017 and paragraph Nos.7 and 3 and 4 of both the Affidavits are quoted below, one filed by Mr. Ravindra Joshi, S/o Mr. Jagatram Joshi, Deputy Commissioner of Customs (Refunds), Bangalore and Mr. Rajiv Bhushan Tiwari, S/o B.V. Tiwari working as .....

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ng me to deposit the cost (which is already complied with) having regard to the fact that I took charge of the office on 22.10.2016. Affidavit of Mr. Rajiv Bhushan Tiwari 3. However, pursuant to the order dated 14.12.2016 passed by this Hon ble Court, the Deputy Commissioner of Customs (Refunds) reconsidered the earlier order and passed another order 14.12.2016 sanctioning refund of the amount and the same stands credited to the account of Petitioner Company by way of RTGS remittance vide Cheque .....

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ected by this Court amounting to ₹ 59,800/- with the Registrar General of this Court on 15.12.2016. 8. Having heard the learned counsel for the parties and in view of the aforesaid, this Court is not inclined to take a lenient and casual approach in the matter, as the respondent officials cannot be allowed to go around and bypass the binding precedent of the Hon ble Supreme Court in such matters and since the amount in question was paid by the petitioner clearly under protest , from their .....

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