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TMI Blog2016 (8) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... arun Gulati, Mr. Shashi Mathews, Mr. Sparsh Bhargava, Mr. Ankit Sachdeva, Mr. Kishore Kunal, Mr. Manish Rastogi and Ms. Rachana Yadav, Advocates Respondents Through: Ms. Saroj Bidawat, Advocate for Respondent No.1 Mr. Pramod Kumar Rai, Senior Standing Counsel with Mr. Deepak Anand, Junior Standing Counsel for Respondent Nos. 2, 3 4. O R D E R Dr. S. Muralidhar, J.: 1. Notice. Ms. Saroj Bidawat accepts notice on behalf of Respondent No.1 and Mr. Deepak Anand for Respondent Nos. 2, 3 4. 2. This is another instance of open defiance of the law and the judgments of the Courts by a statutory authority vested with both the power and the responsibility to comply with the mandate of the governing statute. 3. The subject matter of the writ petition is a refund claim by the Petitioner for refund of excess additional customs duty paid under Section 3 (1) of the Customs Act, 1962 ('Act') read with Serial Number 263A and condition no. 16 of Notification No. 12/2012-CE dated 17th March 2012 (as amended). 4. The Petitioner company sells, inter alia, electronic products such as mobile phones etc. As part of its business activities, the Petitioner imported mob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That the Petitioner has not submitted copy of audited balance sheet for the subject period. c. That the Petitioner has not submitted CA certificate from Statutory Auditors in support of claim for Unjust Enrichment. d. That the Petitioner has not provided any calculation cum corelation sheet certified by Statutory Auditor. 8. The Petitioner replied to the above memorandum on 18th February, 2016 inter alia pointing out that under Section 27 of the Act there was no requirement of getting the B/E re-assessed for the purposes of claiming refund. Three decisions of the Customs Excise and Service Tax Appellate Tribunal were referred to by the Petitioner. 9. It may be mentioned at this stage that in its recent decision in Micromax Informatics Ltd. v. Union of India 2016 (335) E.L.T. 446 (Del.), this Court clarified the legal position that for the purpose of claiming a refund under Section 27 of the Act it is not open to the Authority to refuse to consider the application for refund only because an appeal has not been filed against the assessment order. The Court in coming to the above conclusion analysed Section 27 of the Act, both prior to and after the amendments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad filed a review petition in the Supreme Court which had been admitted and was pending consideration. As far as the decision of this Court in Micromax Informatics (supra) was concerned, Respondent No.4 again highlighted in bold letters in the impugned order that the above order of the Hon ble High Court has not been accepted by the Department and the Department has now decided to file a SLP before the apex Court against the orders of the Hon ble High Court. Respondent No. 4, therefore, chose to completely ignore the decision of the Supreme Court and of this Court which were binding on him. Respondent No.4 concluded as under: In view of the above, I find that refund claim of ₹ 2,10,96,725/- filed on 29. 12.201 5 is not maintainable since the importer has failed to fulfil the basic condition for claiming of excess payment of customs duty under section 27 (1) (a) of the Customs Act, 1962. I find there is no proof of excess payment of custom duty in respect of Bill of entries filed by the party from the period 02.01.2015 to 10.02.2015 as these are finally assessed Bills of Entry and the party has also failed to submit the reassessed Bills of Entry as per benefit claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its operation has been suspended by a competent court. If this healthy rule is not followed, the result will only be undue harassment to assessees and chaos in administration of tax laws. 7. The impression or anxiety of the Assistant Collector that, if he accepted the assessee's contention, the department would lose revenue and would also have no remedy to have the matter rectified is also incorrect..... The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its correctness. He has to follow the order of the higher appellate authority. This may instantly cause some prejudice to the Revenue but the remedy is also in the hands of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no justification for Respondent No.4 to ignore the binding decisions only because an appeal was filed in which no stay was granted. As far as the Department's review petition against the decision of the Supreme Court in SRF Ltd. (supra) is concerned, that now stands dismissed by the Supreme Court by order dated 15th July, 2016. As far as the decision of this Court in Micromax Informatics (supra) goes, no order in an SLP staying the said decision has been produced. Therefore, there was absolutely no justification for Respondent No.4 to have rejected the Petitioner's refund claim on the above basis. 15. The impugned order dated 7th June 2016 passed by Respondent No.4 rejecting the Petitioner's refund claim is accordingly set aside. 16. With the Petitioner having already placed all the relevant documents on record and with the only reason for rejection of the refund application being the untenable ground of alleged failure by the Petitioner to submit reassessed B/Es, the Court sees no reason why the Respondents should be permitted to deny the Petitioner the grant of refund any longer. 17. Accordingly, the refund claim filed by the Petitioner on 28th December ..... X X X X Extracts X X X X X X X X Extracts X X X X
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