TMI Blog2020 (9) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same. This Court is of the view that though there is an alternate remedy of appeal as against the impugned order in the present case, the same shall not be a bar to maintain this Writ Petition under Article 226 of the Constitution of India, since there is a violation of the procedure prescribed under the statute and thereby, the order itself is wholly without jurisdiction - Apart from this aspect, admittedly, the impugned order has been made without issuance of a show cause notice, calling for the petitioner s objections and as such, is in violation of the Principles of Natural Justice. On this ground also, the petitioner may be entitled to invoke the writ jurisdiction without availing the alternate remedy, as held in a catena of decisions of the Hon ble Apex Court and various High Courts. The impugned Order is set aside and the respondent shall refund the claim made by the petitioner, which is the subject matter of the Order-in-Original, together with interest at the rate of 6% p.a. from the date of the refund application - Petition allowed. - W.P.No.22117 of 2014 - - - Dated:- 1-9-2020 - HONOURABLE MR. JUSTICE M.S. RAMESH For Petitioner: Mr.Joseph Prabakar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents would place reliance on the reasoning given in the impugned order of rejection and submit that, there is a discrepancy in the description between the goods imported and the subsequent sale of goods in India and in view of the non-fulfillment of condition 2(e)(ii) of the Notification No.102/2007 dated 14.09.2007, there is no infirmity in the impugned order. She would further place reliance on the averments in Paragraph 17 of the counter affidavit filed by the respondent and submit that, since the petitioner has not availed the alternate remedy of an appeal against the Order-in-Original, the Writ Petition itself is liable to be dismissed. 5. I have given careful consideration to the submissions made by the respective counsels. 6. As observed earlier, Notification No.102/2007 dated 14.09.2007 (as amended), provides for refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act, 1975 upon sale of imported goods in India, subject to certain conditions. Among the conditions prescribed, the importer was required to pay the appropriate Sales Tax or Value Added Tax and should also produce documents evidencing payment of appropriate Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular No.6/2008, dated 28.04.2008. Among these enclosures, a certificate dated 22.11.2013 was enclosed stating that the accountants therein are the Statutory Auditors and that the Bills of Entry and the corresponding TR6 Challan, Sale Invoice and supporting documents have been verified and certified that the same goods that were imported under the Bills of Entry were sold under Sales Invoice and the appropriate VAT/CST has been paid to the authorities. Along with the certificate, the correlation sheet was also enclosed certifying that both the imported goods and the locally sold goods are one and the same. 10. The procedure contemplated for seeking exemption/refund of the Additional Duty of Customs is under Notification No.102/2007 dated 14.09.2007 read with Circular No.6/2008 dated 28.04.2008. If that be so, the respondent is mandated to strictly adhere to the procedure prescribed under this notification/circular and cannot deviate from the same. However, in the instant case, the respondent seems to have applied their own logic and imagination to differentiate the imported goods with the goods sold locally inside India. If at all, the respondent was of the view that the descrip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim. In respect of the remaining portion, the only reason for rejection is that the appellant has not adopted the same code while describing the product in their sale invoices. The explanation offered by the appellant/importer is that the numbers which followed the letters HDPE/LDPE/LLDPE are relevant only for person who is importing goods from the foreign country on orders being placed by the appellant and is of no consequence on the sale while selling the product in the local market. In our considered view, the adjudicating authority has not come to a conclusion that the product sold was entirely different. In fact, there was nothing on record to disbelieve the Chartered Accountant's certificate which certified that both products are one and the same. If the adjudicating authority had to disbelieve such certification, then there should have been material to do so. However, the larger question would be whether at all such jurisdiction is vested with the adjudicating authority, when there is no allegation of any fraud or misrepresentation against the appellant. 11.In our considered view, the Commissioner (Appeals-II), the first appellate authority was right in its observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Commissioner of Customs, Chennai, the order of the learned Single Judge in W.P.No.22321 of 2014 was set aside. The order in Writ Appeal came to be decided on 13.10.2015 and the respondent/department was represented by their Standing Counsel. 16. It is rather unfortunate that the counter affidavit dated 13.01.2016, filed by the Deputy/Assistant Commissioner of Customs (Legal), has been carelessly sworn in, even without verifying the status of the further appeal made against this order, particularly, when the department was also a party in the Writ Appeal. Though it is a matter of serious concern that such counter affidavits are being placed before the High Courts, without due verification of the facts, this Court would only remark to indicate that such careless approach in drafting should be avoided in future. 17. Having said so, this Court is of the view that though there is an alternate remedy of appeal as against the impugned order in the present case, the same shall not be a bar to maintain this Writ Petition under Article 226 of the Constitution of India, since there is a violation of the procedure prescribed under the statute and thereby, the order itself is wholly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
