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TMI Blog2023 (3) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial discipline and following the ratio of the judgment of the jurisdictional High Court and should have defied Delhi High Court while passing the impugned order. We are surprised as to how the Committee of two Commissioners has not only concluded that the Commissioner (Appeals) does not have to follow judicial discipline but have gone further to say that the Commissioner (Appeals) has erred in following the binding precedent of the jurisdictional High Court. The prayer before us is to hold that the Commissioner (Appeals) erred in following judicial discipline and that he should have not followed the binding precedent of the jurisdictional High Court because in some other case, on the same issue in which also the High Court dismissed the Revenue s appeal, an SLP has been admitted by the Supreme Court. The submissions of Revenue in this appeal that the Commissioner (Appeals) should have not followed the binding ruling of the jurisdictional High Court can only result in considerable harassment to the assessee-public through needless litigation without any benefit to the Revenue. Both these appeals filed by the Revenue are dismissed. - Customs Appeal No. 52190 of 2018 AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals), by the impugned orders, allowed appeals of the respondent relying on the judgment of the jurisdictional Delhi High Court in M/s. Sony India Pvt. Ltd. vs Commissioner of Customs, New Delhi [2014 (304) ELT 660 (Del.)] in which the it was held that the notification must be read down insofar as it places the restriction of one year for filing the refund claim. The relevant paragraphs of this decision are as follows: 14 . The expression so far as may be in this context, under Section 27 is significant as well as instructive. The levy under Section 3(5) is conditional upon the Central Government s opinion that it is necessary to counter-balance the sales tax, value added lax, local lax or any other charges for the time being leviable on a like article. ; the rate of duty - where more than one levy exists, would be the highest of such rates and the terms of imposition of SADC would be spelt out in the notification. In this case, the regime existing before the notification of 2008 did not specify any period of limitation - and perhaps advisedly so. Some customs authorities apparently started applying Section 27, drawing inspiration from Section 3(8) which led to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckoned. All that can be inferred from the term so far as may be would be that specific provisions relating to the mechanism applicable for refund, in the Customs Act, applied; not the period of limitation. The Customs authorities had never understood Section 27(1) as to mean that a one year period of limitation was applicable. Audioplus (supra) and United Chemicals Industries (supra) are both testimony to this. It is the circulars/notifications of 2008 and No. 16/2009 which for the first time harped on the one year period of limitation. Circular No 6/2008, dated 28-4-2008 issued by the C.B.E. C. stated that : Time-Limit: 4. In 4.1 the Notification No. 102/2007-Cus., dated 14-9- 2007, no specific time-limit has been prescribed for filing a refund application. Under the circumstances, a doubt has been expressed that whether the normal time-limit of six months prescribed in Section 27 of the Customs Act, would apply. In the absence of specific provision of Section 27 being made applicable in the said notification, the time-limit prescribed in this section would not be automatically applicable to refunds under the notification. Further, it was also represented that the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee and against the Revenue. The appeal accordingly succeeds and is allowed without any order as to costs. 6. Revenue s SLP against the above judgment was dismissed by the Supreme Court in view of the limitation leaving the question of law open [Commissioner v. Sony India Pvt. Ltd. - 2016 (337) E.L.T. A102 (S.C.)] . On the same question of law, Bombay High Court held that the limitation of one year applies for refunds in CMS INFOSYSTEMS LTD. Versus UNION OF INDIA [2017 (349) E.L.T. 236 (Bom.)] . Appeal against CMS Infosystems [CMS Info Systems Ltd. v. Union of India - 2018 (360) E.L.T. A190 (S.C.)] is admitted and is pending before Supreme Court. Thus, the binding legal precedent as far as Delhi jurisdiction is concerned is Sony India which still holds the field. 7. Revenue filed these appeals on the ground that in another case of Wilhem Textiles India Pvt. Ltd., involving the same issue, Revenue s appeal to Delhi High Court on the same issue was dismissed and Revenue s SLP against the dismissal by the Delhi High Court has been admitted by the Supreme Court. Therefore, according the Revenue, Commissioner (Appeals) has erred in observing the judicial discipline and follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Sri Reddy overlooks is that we are not concerned here with the correctness or otherwise of their conclusion or of any factual mala fides but with the fact that the officers, in reaching their conclusion, by-passed two appellate orders in regard to the same issue which were placed before them, one of the Collector (Appeals) and the other of the Tribunal. The High Court has, in our view, rightly criticised this conduct of the Assistant Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of authorities higher to them in the appellate hierarchy. It cannot be too vehemently emphasised that it is of utmost importance that, in disposing of the quasi-judicial issues before them, revenue officers are bound by the decisions of the appellate authorities. The order of the Appellate Collector is binding on the Assistant Collectors working within his jurisdiction and the order of the Tribunal is binding upon the Assistant Collectors and the Appellate Collectors who function under the jurisdiction of the Tribunal. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the notice of the Board or the Collector so as to enable appropriate proceedings being taken under S. 35E(1) or (2) to keep the interests of the department alive. If the officer s view is the correct one, it will no doubt be finally upheld and the Revenue will get the duty, though after some delay which such procedure would entail. 8. We have dealt with this aspect at some length, because it has been suggested by the learned Additional Solicitor General that the observations made by the High Court, have been harsh on the officers. It is clear that the observations of the High Court, seemingly vehement, and apparently unpalatable to the Revenue, are only intended to curb a tendency in revenue matters which, if allowed to become widespread, could result in considerable harassment to the assessee-public without any benefit to the Revenue. We would like to say that the department should take these observations in the proper spirit. The observations of the High Court should be kept in mind in future and utmost regard should be paid by the adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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