TMI Blog2009 (6) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ported goods classifiable under Chapter Heading 87149990 of the Central Excise Tariff Act, 1985. In terms of Sr. No. 25 of the Notification No. 10/2003-CE dated 01.02.2003 as amended by Notification No. 43/2006-CE dated 30.12.2006, the goods imported by the Petitioners are fully exempt from payment of Central Excise duty and consequently no additional duty of customs under Section 3 of the Customs Tariff Act, 1975 is payable on the goods. The Petitioners however, contended that inadvertently and under a bona fide mistake they did not claim exemption under the aforesaid notifications in respect of some Bills of entry. The Respondent No. 3 assessed all the Bills of Entry without extending the benefit of the above Notifications. The petitioners cleared the goods imported by them on payment of additional duty at the rate of 14% under Section 3 of the Customs Tariff Act, 1975. 2. According to Petitioners, the bills of entries were assessed without affording the Petitioner an opportunity of being heard and without assigning any reasons for not extending the benefits. The Petitioners have imported similar goods prior to and subsequent to the aforesaid consignments. The benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be pointed out that the respondents have not controverted the claims by the Petitioners that under the notification, the goods were exempt from the payment of Central Excise duty and consequently no additional duty of customs under section 3 of the Customs Tariff Act, 1975 was payable. Similarly the respondents have not denied the averments in the Petition that the Petitioners had imported the goods of the same nature prior to and subsequent to the aforesaid consignments and the benefit of the said notification was extended to the Petitioners by the Respondents. The principle objection on behalf of the Respondent has been that as the Petitioners did not challenge the order of assessment the application for refund was not maintainable. Reliance for that purpose has been placed on the judgment of the Supreme Court in Priya Blue Industries Ltd. Vs. Commissioner of Customs (Preventive) 2004 (172) E.L.T. 145 (S.C.). Collector of Central Excise Vs. Flock ( India ) Pvt. Ltd. 2000 (12) E.L.T. 9S. and the judgment of the Delhi High Court in Steel City Beverages Pvt. Ltd. Versus Union of India , 2003(159) E.L.T. 14 (Del). It is also pointed out that as the Petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inspite of alternative remedy being available. This court also noted that once there be notifications, even if attention of the respondents had not been drawn by the Petitioners to those notifications, a duty was cast on the Assessing Officer to consider the said notification considering that he is the authority to assess if they were relevant for the purpose of assessment. The view on alternative remedy was reiterated in an unreported judgment in Khandelwal Laboratories Ltd. Vs. The Union of India and Others, being Writ Petition No. 6134 of 2008 decided on 8 th October, 2008. Our attention was also invited to another judgment of this court in Nandlal Vithaldas Vs. Commissioner of Income Tax, (1989) 180 ITR 609 (Bom). There also the court was examining the issue of alternative remedy. This court observed that this court if on merits, finds that the orders passed by the judicial or quasi judicial Tribunals are patently wrong, this court would not be justified in refusing to exercise its extra ordinary jurisdiction if justice demands. The law therefore as settled is that mere existence of the alternative remedy by itself is no bar for this court exercising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Judicial Committee in Coroline M. Armytage Ors. v. Frederick Wilkinson (1878 (3JA.C.355 at 370) that it is only, however, in the event of there being a real difficulty in ascertaining the meaning of a particular enactment that the question of strictness or of liberality of construction arises. The Judicial Committee reiterated in the said decision at page 369 of the report that in a taxing Act provisions establishing an exception to the general rule of taxation are to be construed strictly against those who invoke its benefit. While interpreting an exemption clause, liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. It must, however, be borne in mind that absurd results of construction should be avoided." 8. In the instant case, the Petitioners admittedly, based on the said notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the imports in question. In other words, both the parties were aware of the said notifications. If the Petitioner on account of an inadvertent error chose not to apply for the benefit, would that result in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
