2018 (8) TMI 1901 - HC - Customs

Refund claim - Benefit of concessional rate of duty - N/N. 12/2012-C.E., dated 17-3-2012 (as amended from time to time) - Revenue points out that the petitioner paid the duty consciously and after deliberation; therefore, the deposit of amounts towards duty were not contrary to law - Plea of alternative remedy - HELD THAT - This Court is of opinion that the plea of alternative remedy- an unoriginal and frequently used stereotypical defence by public bodies - in such cases at least dodges the crux of any dispute, i.e. the liability of the concerned public body or agency on merits. Sans any dispute with respect to facts, this Court finds it entirely unpersuasive, since Article 144 of the Constitution, compels all authorities to give effect to the law declared by the Supreme Court. The amount claimed was not duty and could not have been recovered by the Customs authorities in the first instance. Therefore, they cannot now seek shelter under Section 27(3) to resist a legitimate refund claim. The refund application moved by the petitioner shall be decided on its merits, within ten weeks, in accordance with law - Petition allowed.

Issues:
1. Quashing of order of Deputy Commissioner (Refund) and release of refund sought by petitioner.
2. Claim of limitation not being a bar.
3. Eligibility for availing concessional rate of CVD.
4. Discrimination in granting benefit of concessional rate of duty.
5. Filing of refund application beyond prescribed period.
6. Applicability of SRF Limited judgment.
7. Alternative remedy and relevance of Section 27(3) in refund application.

Analysis:

1. The petitioner sought to quash the order of the Deputy Commissioner (Refund) dated 7-3-2017 and requested the release of the refund. The High Court allowed the writ petition, remanding the matter back for a decision on the refund application within ten weeks, emphasizing that the limitation should not be a bar to the petitioner's claim.

2. The Court acknowledged that the reasons for the initial order were not discussed, leading to the listing of the writ petition for further directions. Both parties agreed that the conclusions in the previous order were correct, prompting a detailed discussion on the facts and reasons supporting those conclusions.

3. The petitioner imported mobile handsets and self-assessed duty, paying an excess amount towards CVD due to a mistake of fact and law. The petitioner claimed eligibility for the concessional rate of CVD at 1% under Notification No. 12/2012-C.E., which was not initially granted by the Revenue. The Supreme Court's judgment in SRF Limited established that the petitioner was entitled to the exemption from payment of CVD at the enhanced rate.

4. Allegations of discrimination were raised as other entities received the benefit of the concessional rate of duty post the Supreme Court's ruling in SRF Limited, while the petitioner was denied the same, leading to a refund claim for the excess amount paid towards CVD.

5. The Revenue contended that the petitioner's delay in filing the refund application beyond the prescribed period of limitation under Section 27 of the Customs Act, 1962, was fatal to the claim. The petitioner argued that the duty itself was not payable, thus not falling under the bar provided by the Act.

6. The judgment in SRF Limited was pivotal in establishing the principles for granting exemptions from CVD, emphasizing the deemed manufacture concept for imports. The Court upheld the applicability of SRF Limited and criticized the Revenue's reliance on the plea of alternative remedy to defeat the refund application.

7. The High Court quashed the impugned order, directing a decision on the refund application within ten weeks, emphasizing the need to adhere to the law declared by the Supreme Court. The Court dismissed the Revenue's reliance on Section 27(3) to resist the refund claim, highlighting that the claimed amount was not duty and should have never been recovered by the Customs authorities initially.

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