TaxTMI 
TaxTMI 
2017 (7) TMI 551
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.... or revised. 2. In order to adjudicate upon the instant writ petition, the following relevant facts are required to be noticed : 2.1. The petitioner is in the business of importing and selling electronic products, which includes mobile phones (its parts and accessories), tablets and television sets, etc., It appears, as a part of its business activities, over a period of time, the petitioner had imported mobile phones, qua which Bills of Entires (in short 'BEs') were filed. 2.2. The petitioner claims that at the relevant point in time, i.e., at the time of clearance of the said goods, it was not granted the benefit of concessional rate of duty. The petitioner, evidently, had been paying duty at the rate of 13.5% [comprising of 0% Basic Customs Duty (BCD), 13.5% Countervailing Duty (CVD) {including 1% National Calamity Contingent Duty(NCCD)}, 0% Education Cess, 0% Higher Secondary Education Cess and 0% Special Additional Duty(SAD)]. 2.3. The petitioner, evidently, took the stand that, since, CVD imposed upon it, emanates from the provisions of Section 3(1) of the Customs Tariff Act, 1975, which provides that CVD shall be equal to the excise duty for the time being leviab....
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....dgement in the matter of : SRF Industries Vs. Commissioner of Customs, Chennai, 2015 (318) ELT 607 (SC). Via the said judgement, in effect, the Supreme Court ruled that SRF Industries, which was an importer of goods, was entitled to the benefit of the said exemption notification, which contained condition No.20, which was similar to condition No.16 obtaining in Notification No.12/2012-CE. The rationale being, as it appears, that since, the manufacturer of imported goods is situate outside India, and therefore, would not be entitiled to take credit under the CENVAT Credit Rules, 2002, it shall be presumed that the condition for non-availment of concessional rate of duty, which was, the non-availment of CENVAT Credit, stood satisfied. 3. Based on the aforesaid position in law, on 14.09.2015, the petitioner lodged four (4) refund claims in respect of imports made between April and July 2015. These refund claims pertained to 233 BEs. The details, with regard to the refund claims, are, for the sake of convenience, set out hereinbelow : Sl. No. Period No.of Bes Refund Application No. Amount (in Rs.) 1 April 2015 18 S25A/Gen/81/2015 (Refunds-Air) 1,22,33,346.72 2 May 2015 10....
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....was no provision in the Act, for passing an order of the kind, which had been passed by the second respondent, which is, to, simply, return the applications. The second respondent was required to either allow or reject the applications for refund. The impugned order was, thus, not sustainable in law. 6.3. Despite making a specific demand that a personal hearing be granted to the petitioner in terms of the provision made, in that behalf, in the refund application, the impugned order was passed without affording any opportunity of hearing to the petitioner. The impugned order, thus, violated the principles of natural justice, and would, consequently, have to be set aside on this short ground alone. 6.4. Since, the BEs had to be filed via an electronic mode, the petitioner had no opportunity to avail of the benefit of a lower rate of CVD based on the decision rendered by the Supreme Court in SRF Industries case, and therefore, a protest was lodged, both via letters dated 22.04.2015. 30.04.2015, 16.06.2015 and 19.06.2015 addressed to the Deputy Commissioner of Customs, and through endorsement made in the refund application dated 02.11.2015. 6.5. Post 08.04.2011, the entire scheme vi....
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....his submissions, learned counsel for the petitioner relied upon the following judgments and/or orders : (i) Aman Medical Products Ltd. V. Commissioner of Customs, Delhi, 2010 (250) ELT 30 ; (ii) Suryalaxmi Cotton Mills V. Commissioner of Central Excise, Nagpur, 2014-TIOL-3015-CESTAT-MUM; (iii)Central Office Mewar Palace Org. V. Union of India, 2008 (12) STR 545 (Raj.); (iv)Commissioner of Central Excise, Goa V. Sesa Goa Ltd., 2014 (299) ELT 221 (Tri.-Mumbai); (v) Cipla Ltd., V. Commissioner of Customs (ACC & Import), Mumbai, 2015-TIOL-201-CESTAT-MUM; (vi) CGG Veritas Services Ltd. V. Commissioner of S.T., Mumbai, 2015 (38) STR 1139 (Tri.-Mumbai); (vii) Styleman V. Commissioner of Customs, Chennai, 2006 (198) ELT 559 (Tri.-Chennai); (viii) Jindal Vijayanagar Steels Ltd. V. Commissioner of Customs, Mangalore, 2008 (11) STR 109 (Tri.-Bang.); (ix) Manipal Media Network Ltd. V. Commissioner of Customs, Cochin, 2009 (234) ELT 647 (Tri. - Bang.); (x) Orxy Fisheries Private Limited V. Union of India, 2011 (266) ELT 422 (SC); (xi) Union of India V. Real Slotted Angles Company, 2010 (252) ELT 329 (Bom.); (xii) Zuari Agro Chemical Ltd. V. Union of India, 2014 (207) ELT 874 (Bom.); (xiii) Com....
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...., learned counsel submitted that, if, as contended by the petitioner, that the BEs were assessed, without its consent, and that, duty was paid under protest, it could have asked for issuance of a speaking order under Section 17(5) of the Act. In support of this contention, learned counsel submitted that the petitioner had self-assessed the rate of CVD and this rate having been accepted by the proper Officer, there was, in fact, no lis obtaining between the petitioner and the Department, which was exemplified by the fact that as per the 'protest record' maintained by the Department, no protest stood registered. 7.4. The impugned order provided sufficient reasons as to why refund applications could not be processed. Since, the BE had not been re-assessed by the proper officer, the second respondent could not have reviewed or modified the order of assessment. 7.5. Furthermore, my attention was drawn to the averments made in paragraph 28 of the counter affidavit dated 30.05.2016, wherein, it is indicated that vide a letter dated 02.01.2016, it was communicated to the petitioner that its applications for refund had been returned, not only on the ground that they were premature....
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....ssessment order modified or revised ? 10.1. In this behalf, it would be relevant to not only examine the scheme of the Act both prior to and post the amendments, but also the stand taken by the respondents, both in their counter affidavit and generally in other matters, which raise a similar issue. 11. A comparative analysis of the provisions of Sections 17 and 27 of the Act, as they stood both before and after the amendment, would reveal the following : 11.1. Under the unamended Section 17 of the Act, once, an importer or exporter had entered any goods under Section 46 or 50 of the Act respectively, the said goods were required to be examined and tested by the Proper Officer without undue delay under sub-section (1) of the very same Section. 11.2. Based on such examination and testing, the duty, if any, leviable on such goods, would be assessed, save and except, as otherwise provided under Section 85 of the Act. 11.3. The proper Officer, in carrying out the exercise of assessing duty was empowered under sub-section (3) of Section 17 of the Act to require the importer or exporter or any other person to produce such documents and/or information, as stipulated therein. 11.4. Un....
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....ereof, as was found necessary. 12.5. Like in the unamended section, where verification was carried out, the Proper Officer under sub-section (3) of Section 17 was given the power to require the importer or the exporter, or any other person, to produce documents and/or information referred to therein. 12.6. Similarly, under sub-section (4) of Section 17, after the verification, examination or testing of goods, if, the Proper Officer found that the self-assessment was not done correctly, he could, without prejudice to any other action, which may be taken under the Act, re-assess the duty leviable on such goods. 12.7. In case, the duty qua the goods was re-assessed, and such re-assessment was not accepted in writing by the importer, or the exporter, the proper Officer under sub-section (5) of Section 17 of the Act, is required to pass a speaking order within fifteen (15) days from the date of re-assessment of the BE or the shipping bill, as the case may be. 12.8. Furthermore, sub-section (6) of Section 17, authorizes the Proper Officer to audit the assessment of duty of imported goods or goods sought to be exported, at his office, or, at the premises of the importer or the exporte....
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....#39;nil' rate of duty), as against that rate demanded by the customs authority, there is no facility available to lodge a protest. 14.1. The only methodology, therefore, which is available to the importer or the exporter, at the moment, as it appears, is to record their protest in writing letters with the concerned authorities. 14.2. In this particular case, as is evident from the narration of facts set out above, protests were lodged by the petitioner, both via letters, as well as by making a reference qua the same in the applications for refund. 15. The question, therefore, is, that upon, such protests being lodged, is the Proper Officer not made aware of the fact that the clearance of goods made, by paying duties at the rate demanded by the customs authorities, is accompanied by a caveat. 16. The next question, which, arises for consideration, is that, if, such a situation obtains, is the proper Officer not required to verify, examine, or, test the claim of the importer, or, the exporter, as reflected in its protest letters. 17. I must indicate herein that the customs authorities appear to be taking contradictory stands in matters depending on what suits them in a case.....
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....t that the clearance of goods at the rate of duty demanded by the customs authorities is being done with a caveat, and therefore, he is bound to verify, examine and test the goods, and pass a speaking order. 18. I have also held that unless a speaking order is passed, the aggrieved party , i.e., the importer or exporter, cannot lodge a viable appeal with the Commissioner of Customs (Appeals), as it would in the absence of reasons present, in a manner of speech, an "inscrutable face of the sphinx". 18.1. In view of the definitive stand taken in the counter affidavit by the respondents in the present case, that once, a protest was lodged, it was incumbent upon the Department to pass a speaking order, nothing further need to be said on this aspect. However, in the instant appeal, I must also deal with the stand taken by the respondents that no protest was lodged with it, as per the protest record maintained by the Department. 18.2.To be noted, along with the writ petition, a typed set of documents were filed on 25.01.2016, wherein, a specific reference was given by the petitioner to four (4) letters dated 22.04.2015, 30.04.2015, 16.06.2015 and 19.06.2015, whereby, apparently, prote....
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....hereby, the words in pursuance of an order of assessment, which follow the words paid by him have been deleted. The contention advanced on behalf of the petitioner is that once, self-assessment is made under the amended provisions of Section 17, which is not subjected to verification by the proper Officer, the importer or exporter is entitled to, immediately, file for refund, without having to lay a challenge to the assessment order, by way of an appeal, as long as duty has been paid or borne by such a person. 19.2. In support of this contention, reliance was placed by the learned counsel for the petitioner on the judgment of the Division Bench of the Delhi High Court rendered in : Aman Medical Products Limited V. Commissioner of Customs, Delhi, 2010 (250) ELT 30 (Del.), and the judgment delivered, albeit, by another Division Bench of the Delhi High Court in its own case titled : Micromax Informatics Limited V. Union of India, 2016 (335) ELT 446 (Del) - Micromax Informatics Limited-I. 19.3. It may be pertinent to note that the judgment in the matter of : Aman Medical Products Limited case was rendered by the Division Bench prior to the passing of the Finance Act, 2011. In tha....
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.... 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 apply in such event. In other words, whether or not the duty is paid under protest once an application for refund is made in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In other words, under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. 13. As far as the present case is concerned, there was ind....
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....cerned authority was required to pass an order on the refund applications, even if, it is assumed, for the moment, that no protests were lodged or the protest lodged did not accord with the provisions of Circular No.5/2008. 22. I may also indicate herein that the petitioner, in support of its aforesaid submission, has relied upon a series of other orders, to which, I have made a reference above, during my narration, which only follow the line of reasoning adopted by the Division Bench of the Delhi High Court in Micromax Informatics Limited-I case. For the sake of brevity, I think it fit not to advert to those orders in detail. Suffice it to say, I am in agreement with the view taken in Micromax Informatics Limited-I, for the reasons given hereinabove. 23. I may also indicate herein that in the course of arguments, the respondents sought to place reliance on a Division Bench judgement of this Court in Commissioner of Customs V. Ace Designers, (2015) 329 ELT 109 (Mad). As correctly pointed out by the learned counsel for the petitioner, this judgement also dealt with the provisions of Sections 17 and 27 of the Act, which stood on the statute prior to the 2011 amendment. 24. The rec....