Delhi High Court
Priyanka India Private Limited & ... vs Union Of India & Ors. on 16 August, 2018
$~6, 13 & 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16.08.2018
+ W.P.(C) 9898/2017 & CM 40338/2017, 43024/2017
PRIYANKA INDIA PRIVATE LIMITED & ORS...... Petitioners
Through : Mr Alok Yadav, Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Mr Gigi C.George, Senior Standing
Counsel for R-1.
Mr Sanjeev Narula, Senior Standing
Counsel for R-2 & 3.
+ W.P.(C) 10314/2017 & CM 42055/2017
SUNDER IMPEX PVT. LTD & ORS. ..... Petitioners
Through : Mr Abhas Mishra and Ms Seema
Singh, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Mr Kirtiman Singh, CGSC with
Mr Waize Ali Noor, Advocate for
R-1.
Mr Harpreet Singh, Advocate for R-2.
WP(C) 9898/2017 & connected matters
+ W.P.(C) 454/2018 & CM 1946/2018
MAGPPIE INTERNATIONAL LTD. & ORS. ..... Petitioners
Through : Mr Prashant Srivastava, Ms Malabika
Sarkar and Mr Deepak Mahajan,
Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
Through : Mr Kirtiman Singh, CGSC with
Mr Waize Ali Noor, Advocate for R-
Mr Harpreet Singh, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A. K. CHAWLA
HON'BLE MR. JUSTICE S. RAVINDRA BHAT (ORAL)
%
1. The petitioners challenge an order/letter of 24.10.2017 issued
by the respondents (hereafter referred to as the 'Customs Authorities‟)
which had rejected the request for conversion of Bills of Entry for
Home Consumption to Bills of Entry for Warehousing and further,
directions to permit clearance of the goods in terms of the Notification
No.18/2015-cus dated 01.04.2015, as amended by Notification
No.79/2017-cus dated 13.10.2017 are sought.
WP(C) 9898/2017 & connected matters
2. The petitioners relied upon Section 18(1)(a) of the Customs
Act, 1962 and sought provision of assessment of its goods.
Accordingly, orders were made on 16.11.2017. By this Court's order
of 27.11.2017, the goods were permitted to be released on condition of
the petitioners furnishing an undertaking-cum-bond to the respondents
- Customs Authority, but without payment of countervailing duties.
3. Learned counsel relied upon the decision of the Supreme Court
in the case of Government of India versus Indian Tobacco
Association, 2005 (187) ELT 162, to say that if a subsequent
notification subsists, the levy or any part thereof dealt with by
previous notification, the latter notification ought to be read as
effective from the previous date of the earlier notification. It is thus
urged that Notification No.79/2017-cus issued on 13.10.2017 is said to
have applied in respect of the imports that were subject-matter of the
Bills of Entry involved in the present case.
4. It is pointed out that in certain similar situations, this Court had
occasion to dispose of the petitions under Article 226 of the
Constitution of India that primarily concerned the levy of IGST in the
light of Circulars and Press Release dated 13.10.2017, which had
amended or rather brought into force certain exemption notifications
on the subject. In one such proceedings this Court had in Jindal
Dyechem Industries (P) Limited versus Union of India & Others,
W.P.(C) 8677/2017 decided on 16.04.2018, stated as follows:-
WP(C) 9898/2017 & connected matters
"The petitioner‟s grievance is with respect to the
respondents‟ refusal to grant it the facility of exemption
from payment of customs levy for the goods imported
solely for the purpose of fulfilling export obligations. The
petitioner was issued advance authorisations under the
extant Foreign Trade Policy 2015-20. The petitioner
contends that the prevailing exemptions under the custom
notifications, could not have been denied merely on the
premise of the introduction of a new levy under the Goods
and Service Tax with effect from 01.07.2017.
This Court had while entertaining these
proceedings made an interim order on 11.10.2017 in the
following terms :
"1. Notice. Mr. Sanjeev Narula, the learned CGSC,
accepts notice for the Respondents. He has placed
before the Court a Press Release issued by the Ministry
of Finance dated 6th October 2017 setting out the
relief package announced for exporters by the Goods
and Service Tax Council („GST Council‟) at its 22nd
Meeting held on 6th October 2017. Inter alia, the
following relief measures announced were announced:-
"a. Within the next 4 days i.e. by 10.10.2017
the held-up refund of IGST paid on goods exported
outside India in July would begin to be paid. The
August backlog would get cleared from 18.10.2017
and refunds for subsequent months would be
handled expeditiously. Other refunds of IGST paid
on supplies to SEZs and of inputs taxes on exports
under Bond/LUT, shall be processed from
18.10.2017 onwards. For this, the Council agreed to
WP(C) 9898/2017 & connected matters
suitably empower Central and State GST officers so
that exporters get refunds from one authority only.
Related matters of settlement of funds are being
resolved.
b. To prevent cash blockage of exporters due to
upfront payment of GST on inputs etc. the Council
approved two proposals, one for immediate relief
and the other for providing long term support to
exporters. Immediate relief is being given by
extending the Advance Authorization (AA) / Export
Promotion Capital Goods (EPCG) / 100% EOU
schemes to sourcing inputs etc. from abroad as well
as domestic suppliers. Holders of AA / EPCG and
EOUs would be treated as deemed exports under
Section 147 of CGST/SGST Act and refund of tax
paid on such supplies given to the supplier."
2. Mr. Narula states that the formal notification
incorporating the above relief measures was to be
issued within four days thereafter. He states that in all
probability the notification will be issued in the
immediate future.
3. Mr. Handoo, the learned counsel appearing
for the Petitioner, states that notwithstanding the
above relief measures announced by the GST
Council on 6th October 2017, the situation on the
ground remains the same. He has produced before the
Court a copy of an e-challan showing payment of IGST
to the tune of Rs. 58,58,345/- by the Petitioner in
respect of Bill of Entry dated 10th October 2017 for
import of gold bars from Abu Dhabi. He submits that
the Petitioner was not permitted to clear the goods
WP(C) 9898/2017 & connected matters
without such payment and that the Petitioner‟s protest
to the authorities was to no avail.
4. The Court directs the Petitioner to place the
above facts on an affidavit to be filed not later than 3
days from today with an advance copy to Mr. Narula,
who will seek instructions thereon before the next date
of hearing.
5. In the meanwhile, it is directed that, in view of
the aforementioned press release dated 6th October
2017, which prima facie makes no distinction as
regards the Advance Authorisations (AA) issued prior
to or after 1st July 2017, the Petitioner will not
hereafter be required to pay IGST in respect of the
imports of gold bars made by it Petitioner in terms of
the AAs issued to it.
6. The above interim relief is granted subject to the
Petitioner furnishing to the Respondent authorities a
letter of undertaking that the clearance of the imported
goods in terms of the AA will be subject to the final
result of the present petition. Further, the goods
imported would be subject to verification by the
Customs Department in accordance with law.
7. List on 28th November 2017.
8. Order Dasti under the signature of the Court
Master"
In the meanwhile apparently on 13.10.2017,
pursuant to a press release/notice dated 06.10.2017,
the respondent extended the benefit of exemption
notifications, hitherto prevailing to levies under the
Integrated Goods and Service Tax (IGST). That
WP(C) 9898/2017 & connected matters
levy was not the subject of the amended custom
notifications, issued on 29.06.2017.
It is apparent from these facts that the imports
which are the subject matter of the present writ petition
were in fact made after the introduction of GST
Regime. The petitioner is the beneficiary of an
advance license issued on 17.07.2017. At that point of
time, the exemption notifications (issued on
29.06.2017) were not in existence. The exemption of
IGST, was not in force, on that date; the customs
notification (of 29.06.2017) was amended only on
13.10.2017. In these circumstances, this Court is of the
opinion that since the benefit of exemption in fact
existed at that point of time, the most appropriate
course would be for the respondent authorities to verify
whether as a matter of fact the petitioner in fact
fulfilled the export obligations pursuant to the advance
license of 18.07.2017. If it did, there is no need for any
further action. However, if it did not, then the
appropriate and necessary assessment in accordance
with law may be resorted to. The respondent shall
ensure that further proceedings towards verification
and any consequential order shall be completed within
four months from today with advance notice and
proper opportunity to the petitioner.
The writ petition is disposed of in the above terms. The
pending application also stands disposed of."
5. This Court also notes that on 12.12.2017, the Central Board
of Excise & Customs (CBEC) has issued instructions or a Circular
WP(C) 9898/2017 & connected matters
with respect to the refund claims in respect of countervailing duties
as drawback duties.
6. In the light of these above discussions, the respondents are
directed to proceed to consider whether the petitioners fulfil their export
obligations, and pass appropriate orders, if necessary, at the earliest.
7. All rights and contentions of the parties are kept open.
8. The Writ Petitions are disposed of. All pending applications
also stand disposed of.
S. RAVINDRA BHAT, J
A. K. CHAWLA, J
AUGUST 16, 2018
'Sn'
WP(C) 9898/2017 & connected matters
