TaxTMI 
TaxTMI 
2017 (10) TMI 719
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....aring No.102/2007-Customs issued on 14-09-2007 in exercise of the powers conferred by Section 25 (1) of the Customs Act, 1962, the Government of India exempted the goods falling within the First Schedule to the Customs Tariff Act, 1975, from the whole of the additional duty of the customs leviable under Section 3 (5) of the Customs Tariff Act, 1975, when imported into India for subsequent sale. Paragraph 2 of the said notification gave a list of conditions to be fulfilled by the importer, for availing the benefit of exemption. 5. The respondent-assessee filed claims for refund with the jurisdictional Customs Officer. All the claims made by the respondent-assessee were partially allowed by the jurisdictional Customs Officer. For easy appreciation of the extent to which the claims for refund were allowed, we are presenting in a tabular column, the details. C.E.A. NO. Arising out of the Order-in-Original dtd Amount of refund claimed Amount of refund sanctioned 57 of 2017 08-01-2013 Rs.4,85,325.10 ps. Rs.3,10,220.00 ps 60 of 2017 28-09-2012 Rs.3,71,000.40 ps. Rs.1,72,849.00 ps 61 of 2017 05-11-2012 Rs.5,18,367.20 ps. Rs.2,77,617.00 ps ....
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.... on the ground that after the disposal of the appeals, the Tribunal had become functus officio. 9. In the meantime, the respondent-assessee filed writ petitions seeking a direction to the department to grant refund as per the orders of the CESTAT. In the writ petitions, the department took a stand that they had already filed appeals under Section 130A of the Act as against the orders of the CESTAT. But after finding that there were actually no appeals registered on the file of this Court, a Bench of this Court to which one of us (VRSJ) was a party, allowed the writ petitions and directed the refund to be made. It was recorded in the said order that the order passed by the CESTAT, had attained finality as on the date of disposal of the writ petitions and that therefore, the department had no alternative but to refund the amount. 10. Thereafter, the appellant/revenue came up with the above appeals with applications for condonation of delay. Despite stiff opposition from the respondent-assessee, this Court allowed the delay condonation applications, only in view of the fact that the matter required examination, in view of the Supreme Court granting leave to appeal against the ju....
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....e tune of 50% of the amount of refund. 14. The grant of leave by the Supreme Court, as against the judgment of a High Court, does not have the effect of wiping out any principle of law laid down by the High Court. Even in cases where a stay is granted by the Supreme court, the question would depend upon whether an interim stay was granted of the operation of the judgment of the High Court or of the further proceedings pursuant to the order of the High Court. If an interim stay of operation of the judgment of the High Court is granted by the Supreme Court, then it could possibly be argued that the judgment of the High Court cannot be followed as a precedent. Even in such cases, there is no embargo upon the other High Courts to follow the reasoning adopted by the High Court whose judgment was stayed by the Supreme Court, to come to the very same conclusion. 15. In cases where an interim stay is granted by the Supreme Court only in respect of further proceedings, the principle of law laid down by the High Court does not get automatically suspended. In cases where no stay is granted by the Supreme Court, the Tribunal is entitled to follow the judgment of the High Court that is un....
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.... goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of Section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; (d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; (e) the importer shall, inter alia, provide copies of the following documents along with the refund claim: (i) document evidencing payment of the said additional duty; (ii) invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods." 19. It is not indicated anywhere in the notification extracted above, that the imported goods should be sold as such, so as to ....
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....cation No.102/2007-Customs dated 14.09.2007. In such cases, it is reported that the importers were preparing duplicate set of invoices of the same serial number. Scrutiny of these two sets of invoices establishes that the invoice submitted to the department shows description of goods as 'Malaysian round logs' whereas the invoices obtained from the buyer shows the description of goods as 'Imported timber'. The other difference is that in the invoice submitted to the department the quantity of goods in number/pieces are not mentioned whereas in the invoices of the buyer the quantity in number/pieces is clearly mentioned. This fact of preparing duplicate invoices is further substantiated by the other documents such as related transit passes and lorry receipt. These importers are thus defrauding the government revenue by resorting to this modus operandi of submitting the forged documents for claiming refund fraudulently. 4. It is apprehended that above mentioned modus operandi may have all India ramifications and may be prevalent in other field formations and are not limited only to a few cases. In view of the above, all field formations are directed to be alert and vigilant t....
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.... was a mismatch between the description contained in the packing list and the description of goods sold locally. But the explanation given by the assessee is that the moment huge wooden logs that arrived in ships are cut into smaller sizes, the description contained in the original packing list will lose its efficacy. 26. A closer examination of this issue would show that the fears expressed by the department are illusory. There are only two possible scenarios, after the timber logs are imported into India. The first is that after import, the logs are cut into smaller sizes and sold in entirety. The second scenario is that only a part of the logs of smaller sizes are sold. In either of these two scenarios, what can be claimed by the importer is only the refund of the duty actually paid on the import. No importer can claim refund of special additional duty that was not paid by him. No importer can claim refund of SAD (special additional duty) paid on the imported logs, by showing the sale of locally purchased wood logs. This is in view of the fact that the imported timber logs may have to be sold in any case in the local market. If the Government of India wanted the importers of ....
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....is answered against the appellant/revenue. 32. The second question of law raised by the appellant is as to whether the Tribunal could have granted refund without imposing a condition, as imposed by the Supreme Court in the appeals arising out of the decision of the Gujarat High Court in Variety Lumbers Pvt. Ltd. 33. The brief interim order passed by the Supreme Court on 24-11-2011 while granting leave to the Commissioner of Customs in Variety Lumbers, reads as follows: "In the meanwhile, the claims of the respondents for refund of Special Countervailing Duty, shall be processed by the Assessing Officer and the amount so due to them shall be refunded within four weeks from today, subject to the respondents furnishing bank guarantees for half of the amount to be refunded, to the satisfaction of the Assessing Officer. The guarantees shall be kept alive till disposal of these appeals. The quantum of payment of interest to the successful party shall be considered at the time of final disposal of the appeals." 34. As rightly contended by Mr. K. Vijay Kumar, learned counsel for the respondent-assessee, the interim order of the Supreme Court extracted above, is dated 24-1....