2016 (11) TMI 553 - HC - Customs

Refund of erroneous duty paid - section 27 of the Customs Act, 1962 - jurisdiction - Held that - an amendment to section 27 of the Act, made operative with effect from April 8, 2011 - Non-application of mind by the Commissioner is apparent - Although an appellate remedy is available to the petitioner, this Bench is not inclined to relegate it to the appellate remedy, for, there appears to be a clear case of erroneous exercise of jurisdiction. The application for refund consequently revives and shall be considered and disposed of afresh by the Commissioner upon granting appropriate opportunity of hearing to the petitioner and by passing a reasoned order as early as possible, preferably within four weeks - petition allowed - decided in favor of petitioner.

Summary

Issues involved: Challenge to order of Deputy Commissioner of Customs regarding refund of duty paid under section 27 of the Customs Act, 1962. Non-consideration of relevant amendments and legal decisions by the Commissioner. Appellate remedy available but not preferred due to apparent erroneous exercise of jurisdiction.

Analysis:
1. Challenge to Deputy Commissioner's Order: The lead matter in W.P. NO.473 of 2016 involves a challenge to an order dated March 28, 2016, by the Deputy Commissioner of Customs, Air Cargo Refund Section, Customs House, Kolkata. The Commissioner had ruled that refund of erroneously paid duty would only be possible upon setting aside the assessment order by an appropriate appellate authority under section 27 of the Customs Act, 1962. However, the Court noted that the Commissioner did not consider an amendment to section 27 of the Act, effective from April 8, 2011, and a significant decision of the Delhi High Court in a related matter. This failure to consider relevant legal provisions and judgments indicated a lack of application of mind by the Commissioner.

2. Erroneous Exercise of Jurisdiction: Despite the availability of an appellate remedy, the Court was disinclined to relegate the petitioner to the appellate process due to the clear indication of an erroneous exercise of jurisdiction by the Commissioner. The Court found that there was a compelling case for setting aside the impugned order and allowing the application for refund to be reconsidered afresh by the Commissioner.

3. Court's Decision: The Court set aside the order challenged in W.P. NO.473 of 2016, thereby reviving the application for refund for fresh consideration by the Commissioner. The Court directed the Commissioner to provide the petitioner with an opportunity for a hearing and to issue a reasoned order promptly, preferably within four weeks of receiving a copy of the Court's order. Additionally, similar orders in other writ petitions were also set aside for the same reasons as in the lead matter, and the direction for reconsideration of refund applications was extended to all petitioners.

4. Procedural Direction: The Court instructed that a photocopy of its order, endorsed by the Assistant Registrar, be retained with the records of all related writ petitions except W.P NO.473 of 2016. This procedural step was taken to ensure proper documentation and compliance with the Court's directives across all relevant cases.

This detailed analysis of the judgment highlights the issues raised, the Court's observations regarding the Commissioner's decision, the rationale for not opting for the appellate remedy, the Court's decision to set aside the impugned orders, and the procedural directions issued for the proper handling of the cases.