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TMI Blog2013 (11) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1.8027 at the insistence of the fifth respondent. 2. Heard Mr. Shaijan C. George, learned Counsel appearing for the petitioner and Mr. B. Vijay Karthikeyan, learned Standing Counsel appearing for the respondents. 3. The Kerala High Court, by an Interim Order dated 1-12-2011 in W.P. (C) No. 29872 of 2011, considered the case of import of timber to resolve the controversy in respect of conversion factor. In that case, the petitioners contended that the conversion factor to be adopted by the Customs Department in respect of timber, should be 1 Hoppus Ton = 1.416 CBM and not 1 Hoppus Ton = 1.8027 CBM. 4. The issue was raised on the plea that it will have an impact on the refund claim consequent to import when the importer seeks refund of Special Additional Duty consequent to the sale of imported timber after Custom's clearance. The relevant notification is as hereunder. Notification No. 102/2007-Customs dated, 14-9-2007 reads as follows :- "GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) Notification No. 102/2007-Customs New Delhi, the 14th September ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on formula of 1 Hoppus Ton = 1.416 CBM in Mumbai and Tuticorin, directed the Central Board of Excise and Customs (in short 'C.B.E. & C.') to clarify the same by exercise of its power under Section 151A of the Customs Act. Consequent to this direction, the Ministry of Finance, Government of India, Department of Revenue (Tax Research Unit), by clarification dated 26-4-2012, the Board clarified as follows : "Through the Hon'ble High Court of Kerala at Ernakulam's order dated 1-12-2011 in Writ Petition (C) No. 29872/2011 (H) Board's attention has been drawn to the fact that various Custom Houses are following divergent practices for converting the timber quantity in Hoppus Ton (H.P.T.) to Cubic Metre (CBM). These divergent practices have created complications at the time of sanctioning SAD refund and the Hon'ble High Court of Kerala has directed the Central Board of Excise and Customs to issue a clarification under Section 151A about which conversion factors are to be adopted by the Custom Houses while converting volume of timber in Hoppus Ton to Cubic Metre. So that there is uniformity of practice throughout the country. 2. Accordingly, the issue has been examined by the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962, the Board hereby directs that when round timber logs are imported on payment of SAD whose refund is claimed subsequent to their sale on payment of VAT, the log volume based on conversion factor "1 Hoppus Ton = 1.8027 CBM" may be adopted by all the customs formations to determine the quantity imported and quantity sold on payment of VAT. In other words, an importer would be entitled to refund of the full amount of SAD paid on a BILL of Entry only if he produces invoices indicating the sale of round timber logs for the full quantity determined in Cubic Metre (CBM) based on this conversion factor. Pending cases may be disposed of in this manner." The above clarification is under challenge in the present writ petition. 6. The contentions of the learned Counsel for the petitioner, are as follows : (i) In exercise of power under Section 151A of the Customs Act, 1962, the C.B.E. & C. should have clarified the issue, but, on the other hand, they have interpreted and introduced a new system of measurement. (ii) The C.B.E. & C. has not given any materials as to the basis on which they determined that 1 Hoppus Ton will be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that so long as the imported timber in logs, is sold as such, after Customs clearance on payment of Special Additional Duty and the consequent sale in the same form, is supported by the documents, the conversion factor of 1 Hoppus Ton = 1.8027 CBM, will not adversely affect the importer in any manner. In this regard, he relied upon the very circular to state that the clarification is in relation to import of round timber logs only. He, therefore, pleaded that the writ petition is totally misconceived and has to be dismissed. 9. At this juncture, the learned Counsel for the petitioner relied upon certain texts from Wikipedia as well as the information gathered from the website published by Myanmar Inter Safe Co., Ltd., available in the internet, to show the comparative table and the proper method to be adopted. 10. At the outset, this Court is not inclined to accept the petitioner's plea as it is not the role of the Court to adjudicate or determine the methodology to be adopted for the conversion factor in respect of the import of timber. On a reading of the clarification, it is clear that there was some confusion in conversion factor of import of round timber logs i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs and the sale is in form of round timber logs, the petitioner is entitled to get the benefit of clarification issued, which is under challenge. If it is a case of post-import sawing of wood and subsequent sale, the petitioner's refund application will have to be adjudicated by the authority based on materials placed by the petitioner before the competent authority. This Court is unable to accept the petitioner's plea that the clarification puts an embargo on the adjudicating authority in terms of provisions of Section 151A of the Customs Act, 1962. 16. The scope of clarification issued by the Board in terms of Section 151A of the Customs Act, 1962 is emphasized in the following judgments :- (i) Commissioner of Customs, Calcutta v. Indian Oil Corporation Ltd., reported in 2004 (165) E.L.T. 257 (S.C.). The Supreme Court in para 25 held as follows : "25. As is evident from Section 151A the Board is empowered to issue orders or instructions in order to ensure uniformity in the classification of goods or with respect to levy of duty. The need to issue such instructions arises when there is a doubt or ambiguity in relation to those matters. The poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs to make a particular assessment or to dispose of a particular case in a particular manner or, (b) so as to interfere with the discretion of the Collector of Customs (Appeals) in exercise of his appellate functions. The proviso to Section 151A makes it abundantly clear that the Customs Officer who has to make a particular assessment is not bound by such orders or instructions or directions of the Board. An Assessing Authority under the Act being a quasi-judicial authority has to act independently in exercise of his quasi-judicial powers and functions. Section 151A does not in any manner control or affect the independent exercise of quasi-judicial functions by the Assessing Authority." "20. The question now is whether the impugned Standing Order in any manner interferes with the independent quasi judicial function to be discharged in the assessment of duty by the Assessing Officer. Whatever be the language employed in the Standing Order which may suggest that the said instructions are in the nature of a mandate or command, High Court has read down the impugned Standing Order purely as instructions or guidelines and not mandate or command for being obeyed in each indiv ..... 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