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2020 (9) TMI 226 - HC - CustomsRefund of SAD - N/N. 102/2007 dated 14.09.2007 - sale of imported goods in India - Escalator in SKD condition - availability of alternate remedy - HELD THAT - Notification No.102/2007 dated 14.09.2007 (as amended), provides for refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act, 1975 upon sale of imported goods in India, subject to certain conditions. Among the conditions prescribed, the importer was required to pay the appropriate Sales Tax or Value Added Tax and should also produce documents evidencing payment of appropriate Sales Tax or Value Added Tax, as the case may be, on sale of such imported goods - By Circular No.6/2008 dated 28.04.2008, the Central Board of Excise and Customs had prescribed the procedures to be adopted for refund of the 4% Additional Duty of Customs, in pursuance of Notification No.102/2007 dated 14.09.2007. As per Clause 5.1 of this Circular, the importer was required to furnish a certificate from the Statutory Auditor, certifying that the imported goods and the local goods are one and the same. This Court is of the view that though there is an alternate remedy of appeal as against the impugned order in the present case, the same shall not be a bar to maintain this Writ Petition under Article 226 of the Constitution of India, since there is a violation of the procedure prescribed under the statute and thereby, the order itself is wholly without jurisdiction - Apart from this aspect, admittedly, the impugned order has been made without issuance of a show cause notice, calling for the petitioner s objections and as such, is in violation of the Principles of Natural Justice. On this ground also, the petitioner may be entitled to invoke the writ jurisdiction without availing the alternate remedy, as held in a catena of decisions of the Hon ble Apex Court and various High Courts. The impugned Order is set aside and the respondent shall refund the claim made by the petitioner, which is the subject matter of the Order-in-Original, together with interest at the rate of 6% p.a. from the date of the refund application - Petition allowed.
Issues Involved:
1. Rejection of refund claim due to discrepancy in model numbers. 2. Adherence to procedural regulations for refund claims. 3. Maintainability of the Writ Petition despite the availability of an alternate remedy. 4. Violation of Principles of Natural Justice. Detailed Analysis: 1. Rejection of Refund Claim Due to Discrepancy in Model Numbers: The petitioner imported an "Escalator in SKD condition" and paid Additional Duty of Customs. Upon selling the escalator in India, the petitioner sought a refund of the Additional Duty under Notification No.102/2007. The refund claim was rejected because the model numbers in the import documents were missing in the sales invoices, leading to the conclusion that the goods sold were not the same as those imported. The petitioner argued that the required statutory certificates and correlation statements were provided, certifying that the imported goods were the same as those sold locally. 2. Adherence to Procedural Regulations for Refund Claims: The court noted that Notification No.102/2007 and Circular No.6/2008 prescribe the procedure for claiming a refund, which includes submitting a certificate from the statutory auditor correlating the imported goods with the sold goods. The petitioner complied with these requirements by submitting the necessary certificates and correlation statements. The court observed that the respondent deviated from the prescribed procedure by rejecting the refund claim based on discrepancies in model numbers without considering the statutory auditor's certificate. 3. Maintainability of the Writ Petition Despite the Availability of an Alternate Remedy: The respondent argued that the Writ Petition should be dismissed as the petitioner did not exhaust the alternate remedy of an appeal. The court referred to a previous decision where the Single Judge's view that a Writ Petition cannot be maintained without exhausting alternate remedies was set aside. The court emphasized that the Writ Petition is maintainable under Article 226 of the Constitution of India, especially when there is a violation of the prescribed procedure and the order is without jurisdiction. 4. Violation of Principles of Natural Justice: The court highlighted that the impugned order was made without issuing a show cause notice to the petitioner, which is a violation of the Principles of Natural Justice. The court reiterated that a Writ Petition is maintainable in cases where there is a lack of jurisdiction or a violation of fundamental rights or Principles of Natural Justice, as established in various decisions of the Hon'ble Supreme Court. Conclusion: The court concluded that the rejection of the refund claim was contrary to the procedural regulations and exceeded the respondent's jurisdiction. The impugned order was set aside, and the respondent was directed to refund the claim with interest at 6% per annum from the date of the refund application. The refund amount was to be disbursed within four weeks from the receipt of the court's order. The Writ Petition was allowed, and no costs were awarded.
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