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TMI Blog2018 (8) TMI 1901X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on its merits, within ten weeks, in accordance with law - Petition allowed. - W.P. (C) No. 7853 of 2017 - - - Dated:- 6-8-2018 - S. Ravindra Bhat and A.K. Chawla, JJ. Shri Jagdeep Dhankar, Sr. Advocate with Ms. Priyanka Pariar, Ms. Asha Madan and Mukesh Jain, Advocates, for the Petitioner. Shri Sanjeev Narula, CGSC with Abhishek Ghai, Advocate, for the Respondent. ORDER This Court had on 30-7-2018 allowed the writ petition and made the following order : = Matter is remanded back. The petitioner s claim that the limitation will not be bar has to be held. The impugned order is hereby quashed. The refund application moved by the petitioner shall be decided on its merit, within ten weeks, in accordance with law. The writ petition is disposed of. 2. The reasons for making the order were not discussed. However, in the meanwhile, the order itself was issued inadvertently to the parties. In these circumstances, the writ petition was listed today for directions. 3. Learned Counsel for the parties reiterated their submission but at the same time agreed that the conclusions recorded we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see for manufacturing of mobile phones as the goods were not manufactured in India but were imported, therefore, Condition No. 16 was not fulfilled as only those conditions could be satisfied which were capable of satisfaction. 6. It is submitted that following the judgment in the case of Ashok Traders v. Union of India - 1987 (32) E.L.T. 262 (Bom.) of the Bombay High Court, it was held that the condition which could not be satisfied and had to be treated as not satisfied. In the case of SRF Limited (supra) decided on 26-3-2015, dealing with similar issue as to whether the assessee is entitled to the benefit of Notification No. 12/2012-C.E., the Court held that the assessee was entitled to exemption from payment of CVD in view of the law already declared in the cases of Thermax Private Limited v. Collector of Customs (Bombay), New Customs House - 1992 (4) SCC 440 = 1992 (61) E.L.T. 352 (S.C.); Hyderabad Industries Ltd. v. UOI - 1999 (5) SCC 15 = 1999 (108) E.L.T. 321 (S.C.); AIDEK Tourism Services Private Limited v. Commissioner of Customs, New Delhi - 2015 (7) SCC 429 = 2015 (318) E.L.T. 3 (S.C.) that for quantification of additional duty in the case of import, it has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. In this respect, we would like to draw reference from the decision of Hon ble Supreme Court in the case of Union of India and Others v. I.T.C. Limited, 1993 Supp (4) SCC 326, wherein it has been held that any money which is realized in excess of what is permissible in law would be a realization made outside the provisions of the Act. Thus, any amount paid in excess of what was payable is outside the ambit of law. 8. The respondent Customs authorities, who resist the present proceeding for refund, claim that in terms of Section 128 of the Customs Act, 1962, any person aggrieved by any decision or order passed under the Customs Act by an officer of Customs lower in rank than a Principal Commissioner of Customs or Commissioner of Customs (in this case, the Assistant Commissioner of Customs) may appeal to the Commissioner (Appeals). The order dated 3-2-2017 falls well within the ambit of these provisions but the petitioner has chosen to directly approach this Court without exhausting the appellate remedy available. It is submitted, besides that the petitioner in the present petition has contended that excess duty was paid by it during the relevant time under the mistake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2 of the Tariff Act. The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under Section 3(1) would be the excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation deals with the situation where a like article is not so produced or manufactured . The use of the word so implies that the production or manufacture referred to in the second limb is relatable to the use of that expression in the first limb which is of a like article being produced or manufactured in India. The words if produced or manufactured in India do not mean that the like article should be actually produced or manufactured in India. As per the explanation if an imported article is one which has been manufactured or produced, then it must be presumed, for the purpose of Section 3(1), that such an article can likewise be manufactured or produced in India. For the purpose of attracting additional duty under Section 3 on the import of a manufactured or produced article the actual manufacture or production of a like article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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