TMI Blog2021 (2) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... rnish a certificate from the Statutory Auditor, certifying that the imported goods and the local goods are one and the same. The only reason adduced by the respondent in rejecting the petitioner s claim for refund is that, the goods that were locally sold are not the goods that were imported. For such a reasoning, the respondent had relied upon the description in the Bill of Entry of the imported goods, which reads as, Elevator in SKD condition , whereas, the description mentioned in the Sale Invoice dated 31-10-2012 reads as 1 No. Johnson 6 Passenger (408 kgs) Electric Mini Sukranti Lift . Since the respondent was of the view that these two descriptions are distinct, they had concluded that the goods sold are not the same as that imported under the Bill of Entry. The procedure contemplated for seeking exemption/refund of the Additional Duty of Customs is under Notification No. 102/2007, dated 14-9-2007 read with Circular No. 6/2008, dated 28-4-2008. 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 thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- The petitioner herein had imported one Elevator in SKD condition under a Bill of Entry dated 18-6-2012. Upon import, the petitioner had paid Additional Duty of Customs at the rate of 4% under Section 3(5) of the Customs Tariff Act, 1975 amounting to ₹ 39,899.70/-. The Notification No. 102/2007, dated 14-9-2007 (as amended) provides for refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act, 1975, upon sale of the imported goods in India, subject to certain conditions. The petitioner herein, upon sale of the elevator in India, claimed refund of the Additional Duty of Customs, in terms of Notification No. 102/2007, dated 14-9-2007. However, his claim came to be rejected through the impugned Order-in-Original No. 37233/2015, dated 30-4-2015, on the ground that the description of the imported goods and the goods sold in India does not tally and hence, is in violation of the condition in Notification No. 102/2007, dated 14-9-2007. Aggrieved against the order of rejection, the present writ petition has been filed. 3. Mr. Joseph Prabhakar, Learned Counsel for the petitioner submitted that the Government Circulars in Circular No. 6/2008, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dated 14-9-2007. As per Clause 5.1 of this Circular, the importer was required to furnish a certificate from the Statutory Auditor, certifying that the imported goods and the local goods are one and the same. The said clause of the Circular reads as follows :- 5. Documents to be enclosed with refund claim : 5.1 Notification No. 102/2007-Customs, dated 14-9-2007 prescribes the documents that shall be enclosed along with the refund claim. In order to ensure sanction of refund properly, it is clarified that the document evidencing payment of ST/VAT (in original) duly issued by or acknowledged by the concerned ST/VAT authorities shall be submitted by the importer. A certificate from a Chartered Accountant or any other independent authority certifying payment of ST/VAT would not be acceptable in lieu of the original documents. However, a certificate from the statutory auditor/Chartered Accountant, who certifies the importer s annual financial accounts under the Companies Act or any statute, correlating the payment of ST/VAT on the imported goods (in respect of which refund is claimed) with the invoices of sale, would be required along with the original tax/duty payment docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 6/2008, which clarifies the conditions prescribed in Notification No. 102/2007, dated 14-9-2007, requires the importer to produce the certificate of the Statutory Auditor along with the correlation statement and if such certificate and correlation statement are produced, the respondent is bound to accept the description of the goods in the import documents as well as the Sales Invoice to be one and the same, on the strength of the certificate/correlation statement. 11. Curiously, the respondent seems to have differentiated the term elevator from a lift . I do not find any substantial difference in the meaning of these two terms to differentiate the product itself. Apart from this infirmity in the description, there is no other reason adduced in the impugned order. When such infirmities are noticed by the respondent, there was a duty cast on them to place reliance on the Statutory Auditor s certificate and the correlation statement, as required under Notification No. 102/2007, dated 14-9-2007. 12. Though the condition prescribed under the notification does not prescribe a different procedure and even assuming that the respondent was not satisfied with the certificate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DPE is found in both the documents. It is seen that the appellants have used the generic description of the imported goods in the sales invoices and non-mentioning of grade will not change the imported goods different. Hence, the goods imported and the goods sold are one and the same and are co-relatable. The lower authority has not issued any DM or PH to the appellants for making the deficiencies good or to make any submissions. The department has not proved that the goods sold are different from the goods imported. The lower authority has not disputed the fulfillment of the other substantive conditions of the notification by the appellants. Rejection of partial amount of refund on this flimsy ground is not sustainable. ? 13. In view of all the reasoning adduced by this Court and the dictum laid down by the Hon ble Division Bench in P.P. Products Ltd. (supra), the impugned order of rejection of the refund application is totally opposed to the procedural regulation and hence the authority, exercising his powers, has exceeded his jurisdiction and therefore, the impugned order itself is liable to be quashed. 14. It would be pertinent to refer to the second ground raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. 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. 19. The aforesaid powers of the High Court to entertain a writ petition under Article 226 of the Constitution of India, even though the petitioner had not exhausted the alternative forum for redressal, has been reiterated, in various decisions of the Hon ble Supreme Court. One such decision in L.K. Verma v. HMT Ltd., reported in AIR 2006 SC 975, holds that a writ Court may exercise its discretionary judicial power to review inter alia in cases where the authorities lack jurisdiction or for enforcement of fundamental rights or if there is violation of principles of natural justice. Thus, the second ground raised by the petitioner questioning the maintainability of the writ petition, cannot be sustained. 20. For all the foregoing reasons, the impugned Order-in-Original No. 37233/2015, dated 30-4-2015 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 ..... 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