9911796707
TMI Blog2024 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... o be perverse. No perversity has been shown in the impugned order by revenue while filing this appeal. Following the case of Suresh Lataruji Ramteke Versus Sau. Sumanbai Pandurang Petkar Ors. [ 2023 (9) TMI 1475 - SUPREME COURT] , we do not find any merits in this appeal filed by the revenue. Appeal filed by the revenue is dismissed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Manish Raj , Authorised Representative for the Appellant Shri Vipin Kumar Gupta , Advocate for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is filed by the revenue against Order-in-Appeal No.NOI-CUSTM-000-APP-159-18-19 dated 02/07/2018 passed by Commissioner (Appeals) Customs, Central Excise Service Tax, Noida. By the impugned order Commissioner (Appeals) has upheld the order of the Adjudicating Authority sanctioning the refund claim in favour of the respondent in the appeal filed by the revenue. 2.1 Respondent had filed a refund claim for an amount of Rs.38,821/- claiming refund of SAD levied in lieu of VAT supported by the documents such as VAT Challan, sale invoices, CA Certificate etc. 2.2 The refund claim was allowed by the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annual accounts of the importer, correlating the payment of ST/VAT on the imported goods (in respect of which refund is claimed) with the sales invoices, is submitted? Yes. A certificate dt 17.09.2017 submitted by P.K.Mangla Associates, CA [M. No. 081537] for correlating the payment of ST/ VAT. 9. Whether a certificate from statutory auditor/CA, who certifies the annual accounts of the importer, that the burden of 4% Additional duty of Customs has not been passed on by importer to the buyer to fulfill the requirement of unjust enrichment explaining with valid ground justifying how the burden of the same has not been passed on by the importer, is submitted? Yes. Certificate dt 17.09.2017 explaining the grounds for not passing the burden of 4% Additional Duty by the importer submitted. 10. Whether the importer has submitted a self declaration along with the refund claim to the effect that he has not passed on the incidence of 4% Additional Duty of Customs to any other person? Yes. A self declaration dt 17.09.2017 has been filed by the importer. 11 Whether the importer/party is duly registered with ST/VAT authority? Yes, the party is registered with ST/VAT authority under TIN No. 072 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a substantial question of law . In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. [Panchugopal Barua v. Umesh Chandra Goswami and Ors. (1997) 4 SCC 713] 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki10 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a hearing must be provided to the parties in respect thereof. 14.3 When the case is admitted, but upon hearing when it is found that no substantial question of law arises for consideration, reasons should be recorded in such dismissal. 15. In Kichha Sugar Co. Ltd. v. Roofrite (P) Ltd [(2009) 16 SCC 280 ] it was observed: 4. Our attention is drawn by the learned counsel for the respondents to the provisions of Section 100(5) of the Civil Procedure Code where the respondent to a second appeal is permitted to argue that the case does not involve such question i.e. the questions formulated earlier. No doubt, but then the order on the second appeal should indicate, howsoever briefly, why the questions formulated at the earlier stage had, at the stage of final hearing, been found to be no questions of law. 16. Substantial questions should ordinarily, not be framed at a later stage. If done so, then parties must be given an opportunity to meet them. This Court in U.R. Virupakshappa v. Sarvamangala19 held : 15. It, furthermore, should not ordinarily frame a substantial question of law at a subsequent stage without assigning any reason therefor and without giving a reasonable opportunity o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
