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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 ..... and clear that it deals only with the round timber logs and not any other form, the writ petition filed by the petitioner on the misconception about the subsequent modification of the timber at his will is of no relevance to the circular/clarification - Following decision of Union of India v. Madras Steel Re-Rollers Association [2012 (8) TMI 788 - SUPREME COURT OF INDIA] - Decided agsinst Petitioner. - W.P. (MD) No. 8383 of 2012 and M.P. (MD) No. 2 of 2012 - - - Dated:- 31-10-2012 - R. Sudhakar, J. Shri Shaijan C. George, Counsel, for the Petitioner. Shri B. Vijay Karthikeyan, Counsel, for the Respondent. ORDER This writ petition has been filed to issue a writ of Certiorarified Mandamus to call for the entire records pertaining to the order passed by the second respondent herein vide proceedings F. No. 336/25/2011-TRU, dated 26-4-2012 and quash the same as illegal, arbitrary, unreasonable being violative of rules and principles of natural justice and in excess of powers conferred under Section 151A of the Customs Act, 1962 and thereby, direct the respondents 4 and 5 to desist from insisting to use the conversion factor 1.8027 instead of conversion factor 1.416 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; (d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax; as the case may be; (e) the importer shall, inter alia, provide copies of the following documents along with the refund claim : (i) document evidencing payment of the said additional duty; (ii) Invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 3. The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above, are fulfilled. 5. The Kerala High Court taking note of the different in the conversion formula, (i.e.) 1 Hoppus Ton = 1.8027 CBM, in three Customs Houses at Kandla, Kolkatta and Mangalor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Y is the radius and L is the length of the log to arrive at the volume of the log. (2) By using quarter girth method : The formula used in this case in (G/4)2 = 1, where L is the length of the log, G is the mid girth of log. 4. It is also found that the Forest departments of different States follow different practices while calculating the volume of the log. While the Karnataka State Forest Department appears to be using 1 Hoppus Ton = 1.416 CBM, the permits issued by the Gujarat Forest Department for movement of imported logs indicate the formula Hoppus Ton = 1.8027 CBM. However, from the Customs point of view, the main factor to be taken into account while considering refund claims of special additions duty to customs is whether the importer has accounted for the entire volume of logs declared on the Bill of Entry and the documentary evidence for the sale of the same on payment of VAT is produced while claiming refund of SAD. This is especially so when the importer sells round logs per se without any change in form. 5. Accordingly, in compliance of the directions of the Hon ble High Court of Kerala at Ernakulam, in exercise of the powers under Section 151A of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and therefore, he contended that clarification issued by the C.B.E. C. cannot be operated retrospectively. On this premise, this writ petition is canvassed. 8. Mr. B. Vijay Karthikeyan, learned Counsel appearing for the respondents, on instructions, referred to the counter affidavit filed by them and contended as follows : (i) The clarification issued by the C.B.E. C. is passed under Section 151A of the Customs Act, based on the directions issued by the Kerala High Court to bring out the uniformity in conversion factor and therefore, it cannot be said that new method of determination has been formulated by the C.B.E. C. (ii) Even as per the stand by the petitioner, there are two conversion factors and that is not in dispute and the C.B.E. C. has taken the conversion factor as 1 Hoppus Ton = 1.8027 CBM in respect of the logs having almost perfectly cylindrical shape. The respondents deny the calculation method referred to by the petitioner in paragraph 3 of the affidavit stating that it proceeds on a wrong assumption. (iii) The further stand taken by the respondents is that so long as the imported timber in logs, is sold as such, after Customs clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat of the sawnwood. Both are independent of each other. If the import is round timber logs and sale is also the same, then, the clarification will apply. If the import is of sawnwood and sale is also sawnwood, the natural consequence is that VAT paid will be reckoned for the purpose of refund of Special Additional Duty. Two different factors cannot be clubbed together to confuse the issue on conversion of factor. 14. It is another matter that the petitioner after import sells the wood after sawing the same post-import. In that circumstance, it is for the importer to work out his remedy for refund as applicable to if he is entitled to sawnwood. The present clarification is strictly applicable to the round timber logs imported and sold as such and therefore, there can be no confusion whatsoever on the conversion factor adopted by the Department. 15. The plea of the petitioner that the clarification is prospective in nature, is concerned, it does not have any bearing on the merits of the case as already pointed out that if the import is in the form of round timber logs and the sale is in form of round timber logs, the petitioner is entitled to get the benefit of clarification iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date while adhering to a statutory mandate? Even after the reason and rationale underlying the circular disappears, is it obligatory to continue to follow the circular? These are the questions which puzzle me and these are the conclusions which follow if the observations of this Court in the two cases of Dhiren Chemicals Industries are taken to their logical conclusion. (ii) Varsha Plastics Pvt. Ltd. v. Union of India reported in 2009 (235) E.L.T. 193 (S.C.). In paras 18 and 20, the Apex Court held as follows :- 18. Section 151A of the Act confers upon the Board the power to issue orders, instructions and directions to the authorities for proper administration of the provisions of the Act. It also provides that all such authorities and all other persons employed in the execution of the provisions of the Act shall observe and follow such orders, instructions and directions of the Board. Proviso appended thereto states that no such orders, instructions or directions shall be issued - (a) so as to require all such officers of 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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