Calcutta High Court
Commissioner Of Customs [Port] vs M/S. Amar Iron Udyog Limited on 4 March, 2022
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SPECIAL JURISDICTION
ORIGINAL SIDE
HEARD ON : 04.03.2022
DELIVERED ON : 04.03.2022
CORAM
THE HON'BLE MR. JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
IA NO:GA/1/2021
In
CUSTA/6/2021
COMMISSIONER OF CUSTOMS [PORT], KOLKATA
VS.
M/S. AMAR IRON UDYOG LIMITED
.......
IA NO:GA/2/2021
In
CUSTA/6/2021
COMMISSIONER OF CUSTOMS [PORT], KOLKATA
VS.
M/S. AMAR IRON UDYOG LIMITED
.......
Appearance :-
Mr. K. K. Maity, Adv.
Mr. B. P. Banerjee, Adv.
...For the Appellant
Mr. N. K. Chowdhury, Adv.
...For the Respondent
CUSTA/6/2021
JUDGMENT
(Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
RE: IA NO:GA/1/2021
1. We have heard Mr. K. K. Maity, learned senior standing counsel
along with Mr. B. P. Banerjee, learned junior standing counsel for the
appellant/revenue and Mr. N. K. Chowdhury, learned counsel for the
respondent.
2. There is a delay of 349 days in filing this appeal. From the
relevant dates we find that the appellant department would be entitled
to the benefit of the order passed by the Hon'ble Supreme Court
extending the period of limitation for filing the appeal. Therefore, the
petition is allowed and the delay in filing the appeal is condoned.
Accordingly, the application, IA No:GA/1/2021 stands disposed of.
RE: CUSTA/6/2021
3. This appeal by the revenue filed under Section 129B of the
Customs Act, 1962, (the Act, in brevity) is directed against the order
passed by the Customs, Excise and Service Tax Appellate Tribunal,
EZB, Kolkata, (Tribunal) in final order No.76293 of 2019 dated
27.09.2019. The revenue has raised the following substantial
questions of law for our consideration.
a. Whether the Learned Tribunal's impugned order in
rejecting the Department's appeal on monetary limit is
CUSTA/6/2021
without considering the exclusions made under Board's
Instruction bearing F.No.390/Misc./163/2010-JC dated
17.12.2015, and without containing any reasons and
grounds for non-applicability of the exclusions herein
provided ?
b. Whether there has been inherent jurisdictional error
committed by the Learned Tribunal in dismissing the
appeal of the appellant without arguing cogent reasons
and grounds on facts and law, which is in violation of the
principles of natural justice ?
c. Whether the Respondent having accepted the assessment
order is entitled to maintain a refund application and
thereby approbate and reprobate at the same time ?
4. We have heard Mr. K. K. Maity, learned senior standing counsel
along with Mr. B. P. Banerjee, learned junior standing counsel for the
appellant/revenue and Mr. N. K. Chowdhury, learned counsel for the
respondent.
5. The Tribunal by impugned order has dismissed the appeal filed
by the revenue on the sole ground that the case is below the monetary
limit of Rs.10 lakh, which has been notified by the Board in its
Instruction dated 17.12.2015. The revenue is before us by contending
that the issue involved in this case is one of refund and in such cases
the litigation policy cannot be made applicable. In this regard, the
attention of this Court is drawn to the notification dated 17.12.2015
which states that in paragraph 3 of the Instruction dated 17.08.2011
CUSTA/6/2021
a sub-clause (c) shall be added which shall read as "classification and
refunds issues which are of legal and/or recurring nature". By relying
upon the said clause it is submitted by the learned senior standing
counsel for the revenue that the issue involved being one of refund,
the monetary policy will not apply and the appeal should have been
heard by the Tribunal on merits. The learned counsel for the
respondent would contend that though it may be true that the issue
relating to the refund, may be the subject matter in the assessee's
case, it is not a legal issue or an issue of recurring nature. Therefore,
it is submitted that the Tribunal rightly applied the monetary policy
and dismissed the appeal. On going through the order passed by the
Tribunal we find that the Tribunal has not discussed as to whether
the clause 2 of the Notification dated 17.12.2015 inserting sub-clause
(c) to the Instruction dated 17.8.2011 would apply to the case on hand
or otherwise. In the absence of any such discussion, we cannot
examine the correctness of the order of the Tribunal as to whether the
issue of refund is not a legal issue or whether it is not an issue of
recurring nature. Therefore, we are of the view that this aspect of the
matter has to be considered by the Tribunal and thereafter a decision
has to be taken. In the event the Tribunal is convinced that the
monetary policy would not apply to the case on hand then it goes
without saying that the Tribunal should take a decision on merits. In
any event, we do not wish to express any opinion on the merits and
we leave it open to the tribunal to take a decision afresh in the matter
CUSTA/6/2021
after hearing the parties for which purpose we are inclined to remand
the matter back to the Tribunal.
6. For the above reasons, the appeal is allowed. The order passed
by the Tribunal is set aside and the matter is remanded back to the
Tribunal to hear the matter afresh and take a decision in accordance
with law bearing in mind the observations made by us in the
preceding paragraphs. Consequently, the substantial questions of law
are left open.
6. The stay application, IA NO.GA/2/2021 also stands disposed of.
(T.S. SIVAGNANAM, J.)
I agree.
(HIRANMAY BHATTACHARYYA, J.)
Pintu kumar Das/Subrata Pal
AR(CR)
