9911796707
TMI Blog2021 (4) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... achinery in question, on which duty was paid and duty was sought to be claimed as refund, was not in any manner capable of being dealt with or for passing on, so as to pass on the burden of duty to the consumer or end-user. The Court was quite annoyed by the fact that the contention raised by the applicant in relation to the duty paid on the machinery, which was sought to be claimed as refund, was not addressed since the contention of the applicant was all along that there was no consumer or end user and therefore, in no manner, goods were capable of being dealt with or passed on, so as to pass on the burden of duty to the consumer or the end-user. This being a vital aspect and as there was complete silence in answering this vital issue, the Court directed the authority to decide this issue which would have a bearing on the issue of refund given to the consumer welfare fund and interest. Thus, both the aspects of refund and interest, after affording opportunity to the applicant were to be concluded instead of ordering consideration of the aspect of interest alone. The act, alleged to be willful and in complete defiance of the Courts directions, is an act which based on the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate regarding payment of customs duty was issued and based upon it, the applicant had claimed refund of the excess amount of duty. Various rounds of litigation eventually led to preferring an appeal being Appeal No.570/2013 whereby, the Commissioner, Customs Department directed finalization of all the 16 Bills of Entry vide order dated 21.08.2013. The said order had attained finality as it had remained unchallenged. Despite the above order, the Customs authority did not finalize the refund and continued to demand documents till 23.01.2017 when a final assessment order on the Bills of Entries came to be passed. However, the refund claim was not processed. The applicant, therefore, filed the captioned petition claiming refund of ₹ 5,51,82,641.08 along with interest thereon. Pending the petition, on 21.11.2019, various informations had been sought for and the matter was posted on 02.12.2019. 2.1 It is the say of the applicant that on 29.11.2019, the amount of refund was directed to be credited to the Consumer Welfare Fund under Section 27(2) of the Customs Act, 1962 (for short, the Act ) but the claim for interest was rejected. This, according to the applicant, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t refund of the duty along with appropriate interest to the petitioner. (C) Pass such other and further orders as may be deemed appropriate. (D) Order exemplary costs of the present petition. 3. This Court had issued Notice on 22.01.2021. On behalf of the respondent, the Assistant Commissioner (Refund) has filed affidavit-inreply tendering unconditional apology for any unintended mistake, error or inadvertence on the part of the respondent authority. According to him, the respondent puts the majesty of the Court at the highest pedestal and there was no intention to misinterpret the order. What has been construed is that the respondent has been directed to decide the issue afresh and under that obligation and understanding, the claim of the applicant has been decided, after affording the opportunity of representation and personal hearing. It is stated that as per the order dated 20.02.2020 passed by this Court, in the last paragraph, it has been directed that - and decided to make the payment of refund with proper interest under law within a period of 30 days from the date of receipt of writ of the Court . Accordingly, the respondent authority has granted opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a contract with M/s. Techno Exports, Moscow and had continued its business for three years and after a long gap, the applicant had applied for concessional rate of duty under the exemption Notifications. The Contractor had imported the goods, however, the duty exemption was claimed by the applicant. Therefore, unjust enrichment was mandatory, even when the goods were exported as per the provisions of law. Hence, the amount, if any, received from the Customs Department was required to be shown in the Balance Sheet as receivables with the certification that no credit / benefits such as CENVAT, VAT, MODVAT, Sales Tax or any other scheme relevant at that time, had been claimed. It is not known whether any such benefit had been availed by the applicant during that period or not. According to the stand of the respondent, even though the goods were re-exported, the amount must fall in the category of receivable in the Balance Sheet, otherwise, as per Section 28D of the Act, by default, it would be assumed that the duty has been passed on . It is urged that under Section 28D of the Act, which provides for presumption, the applicant is deemed to have passed on the full incidence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsumer Welfare Fund, as provided under Section 27(2) of the Act, since the applicant had failed to justify the unjust enrichment and the interest portion of ₹ 17,03,05,689.63/- had not been approved. It is, thus, emphasized that the order of this Court was for deciding both the aspects of refund as well as interest and the same had to be decided on the basis of the material available on record and by affording opportunity of personal hearing to the applicant. There has been due compliance of the entire order and hence, there is no justification to entertain this application. 4. This Court has heard at length learned advocate Mr. A.R. Mehta for the applicant and learned ASG Mr. Devang Vyas for the opponent. Along the line of their respective pleadings, they have argued the matter. One of the contentions raised by the learned ASG is with regard to the requirement of entertaining this application for contempt, when other avenues are already open to the applicant for challenging the order impugned. He has emphatically urged that the recourse of contempt jurisdiction is not available to the applicant in the wake of availability of other statutory remedy where all the issues can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of receipt of writ of the Court. With this observation, the petition is partly allowed. Rule is made absolute accordingly with no order as to costs. 6. It is quite clear from the observations made in paragraph-13 that the Court had directed the respondent authority to decide the aspect of payment of refund along with interest. The Court took care of the fact that the authority should not insist upon any other material and should decide the matter on the basis of the material which is already with it and if the petitioner is desirous of adding additional material after affording the opportunity to the applicant to produce any material on record, it would decide both the aspects, of refund and interest. Decision of the issue regarding refund with appropriate interest was to be determined within 30 days from the date of receipt of writ of the order. It is more than clear from the order itself that the Court had directed the authority to decide both the aspects of refund and interest and not the issue of interest alone. The Court was quite annoyed by the fact that the contention raised by the applicant in relation to the duty paid on the machinery, which was sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, according to the Court, had not been dealt with in the previous order and if the same has also been addressed by giving cogent reasons, what all the applicant is expected to do is to question the outcome before the appellate authority or by way of appropriate legal challenge. 10. The Court while passing the earlier order could have remanded the matter for the purpose of interest alone, however, it has chosen not to so do it and instead has asked the authority to decide the aspect of payment of refund along with interest without insisting for any additional material and hence, the conclusion if is not as contemplated by the applicant, the authority concerned surely and definitely cannot be said to have acted either contrary to the law or in breach of directions of the Court while addressing both the aspects of refund and interest. The opponent authority committed no disobedience in determining these two, as it could not have done it otherwise. Its non-grant of refund to the applicant and instead to the Consumer Welfare Fund and denial of interest are not the realms which need to be gone into in this application for contempt under the Contempt of Courts Act. 11. We shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
