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2016 (4) TMI 1112 - HC - Central ExciseLevy of Special Additional Duty (SAD) as per Circular dated 27th June 2002 - on goods chargeable to duty under Additional Duties of Excise (Goods of Special Importance) Act 1957 - Appellant submitted that the Supreme Court in one case had said that if there were circulars issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase interpreted in the judgment such interpretation would be binding upon the revenue. Also in the alternative the petitioner was willing to prefer appeal before the statutory authority. Revenue submitted that the circular was upheld by the judgment in one case and there not having been any appeal therefrom such judgment had achieved finality. The petitioner was aware of the judgment and at best the different interpretation claimed could be made applicable on and from 17th July 2015 the date on which the proviso was substituted. Also the importation of the goods in question assessed pursuant to interim order dated 18th June 2003 were prior and up to the year 2003. Held that - the writ petition is disposed of with liberty to the petitioner to prefer a statutory appeal within a fortnight if permissible in law. Since alternative efficacious remedy is to be availed of this Court refrained from going into the merits of the matter. - Petition disposed of
Issues: Challenge to Customs Circular on Levy of Special Additional Duty (SAD) under Additional Duties of Excise Act, 1957; Interpretation of Circular in light of Supreme Court judgment; Applicability of different interpretation through notifications; Finality of judgment in Nikhil Kumar case.
In the judgment delivered by the High Court of Calcutta, the writ petitioner challenged a Customs Circular dated 27th June, 2002, concerning the levy of Special Additional Duty (SAD) on goods chargeable to duty under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The circular was issued following the examination of a Supreme Court judgment in the case of Collector of Central Excise, Vadodara v. Dhiren Chemical Industries. The key issue revolved around whether the circular was issued contrary to the provisions of sub-Section 5 of Section 3A of the Tariff Act. The court analyzed the Supreme Court judgment and noted that the circular aimed to levy special additional duty on goods not subjected to additional excise duty under the relevant Act. The judgment in the case of Nikhil Kumar v. Commissioner of Customs, where the circular was upheld, played a crucial role in the decision. The court highlighted paragraphs 8 and 11 of the said judgment, emphasizing the interpretation given by the Board based on the Dhiren Chemicals case. The court agreed with the Board's interpretation, stating that applying a different interpretation would lead to unjust enrichment for the petitioner. The court dismissed the application based on this analysis. The petitioner's counsel referred to the Dhiren Chemical Industries case, specifically paragraph 9, which mentioned that circulars issued by the Central Board of Excise and Customs with a different interpretation would be binding on the revenue. The petitioner argued that notifications issued post the Supreme Court judgment provided a different interpretation applicable to the case. However, the revenue's counsel opposed this argument, citing the finality of the judgment in the Nikhil Kumar case. The revenue contended that any different interpretation could only be applied prospectively from the date of the relevant notification. In conclusion, the High Court disposed of the writ petition, granting the petitioner liberty to prefer a statutory appeal within a fortnight if permissible by law. The court refrained from delving into the merits of the matter, emphasizing the need for the petitioner to pursue the alternative efficacious remedy available through the statutory appeal process.
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