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TMI Blog2023 (7) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... RT] . A further relief that was claimed by Intex was to direct the department to process the application for refund in accordance with the law declared by the Supreme Court in SRF. When the High Court had examined the correctness of the order dated 29.11.2016 passed by the Assistant Commissioner in the Writ Petition filed by Intex, the department could not have filed the appeal before the Commissioner (Appeals) to assail the same order dated 29.11.2016 before the Commissioner (Appeals). The said order, by necessary implication, stood set aside by the Delhi High Court. Further, the directions issued by the High Court had also been duly complied with by the Assistant Commissioner in the fresh order dated 29.11.2016 and payment had also been paid to Intex. The only course open to the department was to have challenged the order passed by the Delhi High Court on 08.11.2016 before the Supreme Court, which the department did by filing a Special Leave Petition in February 2017, but the Petition was dismissed by the Supreme Court on 07.07.2017. Thus, when the appeal was filed by the department before the Commissioner (Appeals) against an order the correctness of which stood decided ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim to Intex with interest by the order dated 29.11.2016, which order was subsequently modified in view of the rectification application filed by Intex and the correct balance amount of interest was ordered to be refunded. The amount with interest was ultimately also received by Intex through RTGS facility. 3. Two things are, therefore, clear. The first is that the department had filed an appeal to assail the order dated 22.09.2016 passed by the Assistant Commissioner which order was in favour of the department as the refund application filed by Intex had been rejected. Secondly, the Writ Petition filed by Intex in the Delhi High Court against the order dated 22.09.2016 was allowed by the High Court by order dated 08.11.2016 with a direction to the department to pay the refund amount with interest within three weeks from the order of the High Court and this order of the Delhi High Court had been duly complied with the Assistant Commissioner by order dated 29.11.2016 and the refund amount with interest had also been paid to Intex. What is also important to note is that the appeal was filed by the department before the Commissioner (Appeals) on 16.01.2017 much after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 14.07.2015 and filed Bills of Entry for home consumption and paid additional duty of customs by way of scrips in terms of section 3(1) of the Customs Tariff Act, 1975 the Tariff Act at the rate of 13.5% of the value of the said goods. 7. The Central Government had issued a Notification dated 17.03.2012 in exercise of the powers conferred under section 5A of the Central Excise Act, 1944 the Excise Act exempting certain excisable goods from part of or whole of the excise duty payable on such goods. Serial no. 263A of this Notification was applicable to mobile handsets including cellular phones and provided for an effective rate of duty @ 1% of central excise duty provided no CENVAT credit had been taken on the inputs or capital goods used in the manufacture of these goods. 8. In view of the express provisions of the said Notification dated 17.03.2012, excise duty on mobile handsets including cellular phones was payable at the rate of 1% of the value of such goods. Intex was, therefore, required to pay additional duty of customs at the rate of only 1% of the value of the imported goods instead of at the rate of 13.5% paid by it. Intex, therefore, could claim refund of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) No. 10818/2016 before the Delhi High Court claiming the following reliefs: a) That this Hon ble Court be pleased to declare Order dated 22.09.2016 in Refund Application No. ACE/64/2016 issued by Respondent No. 3 as null and void, in violation of the principles of natural justice and contrary to Article 141 of the Constitution of India by being in violation of the settled law of the Supreme Court in SRF Ltd. vs. Commissioner of Customs, Chennai, 2015 (318) ELT 607 (SC); b) That this Hon ble Court be pleased to issue a writ, order or directions in the nature of certiorari or any other writ, order or direction of like nature, to call for, examine the records in relation to, and quash the Order dated 22.09.2016 in Refund Application No. ACE/64/2016 issued by Respondent No. 3 as the order is contrary to Article 141 of the Constitution of India by being in violation of the settled law of the Supreme Court in SRF Ltd. vs. Commissioner of Customs, Chennai, 2015 (318) ELT 607 (SC); c) That this Hon ble Court be pleased to issue a Writ of mandamus, or a Writ in the nature of mandamus, or any other appropriate Writ, order or directions, directing the Respondents to process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gether with interest applicable till date of actual payment within three weeks from today. 7. The writ petition is allowed in the above terms. (emphasis supplied) 14. To ensure compliance of the above directions of the Delhi High Court, the Assistant Commissioner passed the order dated 29.11.2016 sanctioning the refund of Rs. 147,16,78,904/-, which amount was the excess additional duty of customs claimed by Intex, with Rs. 50,80,316/- as interest calculated with effect from 08.11.2016 to 28.11.2016. The following findings were recorded by the Assistant Commissioner in the aforesaid order dated 29.11.2016: 8. Aggrieved, the Claimant filed a writ petition before the Hon ble Delhi High court. Hon ble Delhi High court vide its order dated 08.011.2016 directed to process the petitioner s refund claim and pass appropriate orders having regard to the fact the petitioner had filed supporting certificates in the form of a Chartered Accountant s clarification/certificates etc., claiming that the benefit sought was not passed on to the customers. The respondents are further directed to pay the appropriate refund amount together with interest applicable till date of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the dismissal of the Special Leave Petition filed by the department before the Supreme Court, Intex received a notice dated 15.02.2018 issued by the Commissioner (Appeals), stating that the department had filed an appeal on 16.01.2017 against the order dated 22.09.2016 passed by the Assistant Commissioner rejecting the refund application filed by Intex and Intex was directed to appear before the Commissioner (Appeals) for personal hearing on 12.03.2018. 19. Intex submitted a letter dated 11.03.2018, in response to the personal hearing notice dated 15.02.2018, and informed the Commissioner (Appeals) that it had not received a copy of the appeal purportedly said to have been filed against order dated 22.09.2016. A request was, therefore, made in the letter that a copy of the said appeal be provided to Intex so that appropriate submissions could be made. Intex also informed the Commissioner (Appeals) about the order dated 08.11.2016 of the Delhi High Court and the order dated 07.07.2017 of the Supreme Court. These two orders pertained to the order dated 22.09.2016 passed by the Assistant Commissioner, against which the appeal had been filed by the Department. 20. By a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied) 22. The first issue that arises for consideration in this appeal is as to whether the department could have filed an appeal against the order dated 22.09.2016 passed by the Assistant Commissioner rejecting the refund application filed by Intex, as it has been strongly urged by the learned senior counsel appearing for Intex that there was no plausible reason for the department to file the appeal since the refund application had been rejected by the Assistant Commissioner. What is more important to notice is that the appeal was filed by the department on 16.01.2017, much after the order was passed by the Delhi High Court on 08.11.2016 in the Writ Petition filed by Intex against the said order dated 22.09.2016 passed by the Assistant Commissioner. The reliefs that had been claimed by Intex in the Writ Petition were to declare the order dated 22.09.2016 as null and void and to quash it as it was in violation of the law declared by the Supreme Court in SRF. A further relief that was claimed by Intex was to direct the department to process the application for refund in accordance with the law declared by the Supreme Court in SRF. 23. The Delhi High Court held that in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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