AI Drafter 
TaxTMI 
TaxTMI 
2016 (8) TMI 184
X X X X Extracts X X X X
X X X X Extracts X X X X
....ms 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 (commonly known as countervailing duty or CVD) @ 6%, even though the Petitioner was liable to pay only 1% CVD. The Petitioner refers to Serial No. 263A of Notification No. 12/2012 - CE dated 17th March 2012 (as amended by Notification No. 4/2014 and further amended by Notification No. 12/2015-CE dated 1st March 2015) which was applicable to mobile phones and provided for an effective rate of duty @ 1% of CVD for mobile phones, provided no CENVAT Credit on inputs or capital goods has been availed. 5. It 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 Supr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Act 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. The Court in coming to the above conclusion analysed Section 27 of the Act, both prior to and after the amendments in 2011, and came to the following conclusion: "12. An important change that has been made is that a person can now claim refund of any duty or interest 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 claimant instead of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitation of one year shall not appl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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." 12. The mere fact that the Department was contemplating or in fact filed a review petition or an appeal against an order of the High Court or the Supreme Court that was 'unacceptable' to the Department cannot be a valid justification for not complying with or implementing the order. Unless the operation of the orders is stayed in subsequent proceedings by a Court of competent jurisdiction, the binding effect of the said orders on the Department continues. In Union of India v. Kamlakshi Finance 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 ov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the 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 learned Additional Solicitor General that the observations made by the High Court, have been harsh on the officers. It is clear that the observations of the High Court, seemingly vehement, and apparently unpalatable to the Revenue, are only intended to curb a tendency in revenue matters which, if allowed to become widespread, could result in considerable harassment to the assesses-public without any benefit to the Revenue. We would like to say that the department sho....