Micromax Informatics Limited vs Union Of India And 3 Ors
2021 Latest Caselaw 3236 Bom

                                                                          7.os.wpl.4589.21.doc

S.S.Kilaje


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            ORDINARY ORIGINAL CIVIL JURISDICTION

                               WRIT PETITION (L) NO. 4589 OF 2021

             Micromax Informatics Limited                       .. Petitioner
              Versus
             Union of India and others                          .. Respondents
                                            ...................
              Dr. Milind Sathe, Senior Counsel a/w. Mr. Bhushan Deshmukh, Ms. Manisha
                  Mane-Bhangale & Ms. Pooja Tated - Singhvi i/by Parinam Law Associates for
                  the Petitioner.
                 None for the Respondents.
                                              .....................


                                          CORAM          : UJJAL BHUYAN &
                                                           MILIND N. JADHAV, JJ.

                                            DATE          : FEBRUARY 18, 2021.

             P.C. :

Heard Dr. Sathe, learned senior counsel for the petitioner.

2. Leave to amend is granted to the petitioner to bring on record

the order-in-original passed by the Commissioner of Customs

(Import), Mumbai on 16.02.2021.

3. Re-verification is dispensed with.

4. Petitioner is an importer and had imported mobile handsets

including cellular phones falling under Customs Tariff Heading (CTH)

8517.

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5. Petitioner claimed countervailing duty (CVD) based on a

decision of the Supreme Court dated 26.03.2015 passed in SRF Ltd.

Vs. Commissioner of Customs, Chennai. However, refund claim of the

petitioner was rejected following which petitioner approached this

Court by filing writ petition No. 5751 of 2016. This Court relied upon

decisions of the Delhi High Court and Madras High Court and by the

judgment and order dated 13.11.2018 directed the customs authority

to process the refund claim of the petitioner and thereafter pass

appropriate order.

6. Complying with the judgment and order of this Court, the

competent authority sanctioned refund of Rs. 1,20,52,50,520.00 under

section 27(1)(a) of the Customs Act, 1962.

7. The Delhi High Court judgment relied upon by this Court was

assailed by Union of India before the Supreme Court. Supreme Court

by its decision dated 18.09.2019 set aside the judgments of the Delhi

High Court and Madras High Court and held that a self-assessment

would also be an order of assessment. Provision under section 27 of

the Customs Act, 1962 cannot be invoked in the absence of

amendment or modification in the bill of entry, on the basis of which

self-assessment is made. In other words, order of self- assessment is

required to be followed and unless modified, the claim for refund

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cannot be admitted under section 27.

8. On the strength of the above decision of the Supreme Court,

Commissioner of Customs (Import), Mumbai now contends that basis

of this Court's decision is no longer valid and therefore the refund

granted to the petitioner is liable to be returned back to the customs

department. Accordingly, the impugned demand cum show cause

notice dated 09.01.2020 has been issued to the petitioner under

section 28(1) of the Customs Act, 1962.

9. Dr. Sathe, learned senior counsel submits that after filing of the

writ petition, petitioner received a copy of order-in-original dated

16.02.2021 passed by the Commissioner of Customs (Import)

confirming the demand raised in the demand cum show cause notice.

10. Question for consideration is whether the decision of the

Supreme Court dated 18.09.2019 can be applied retrospectively to

those cases where refund had already been granted ?

11. After hearing Dr. Sathe, learned senior counsel and on due

consideration, we are of the view that issue raised in this writ petition

would require further examination.

12. Issue notice returnable after six weeks.

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13. Since there is no representation on behalf of the respondents,

petitioner to serve the respondents afresh and thereafter file affidavit

of service.

14. In the meanwhile, there shall be stay of the impugned demand

cum show cause notice dated 09.01.2020 and the consequential order

in original dated 16.02.2021.

15. Stand over to 9th April, 2021.

[ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ]

Digitally signed by Ravindra M.

Ravindra   Amberkar
M.         Date:
           2021.02.23
Amberkar   10:36:47
           +0530




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