Commissioner Of Customs vs M/S. Vallabhadas & Company
2021 Latest Caselaw 23569 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                       THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                          &
                     THE HONOURABLE MR.JUSTICE BASANT BALAJI
        TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                              CUS.APPEAL NO. 18 OF 2018
  AGAINST THE ORDER/JUDGMENT IN OTHERS C/20435/2015-DB OF CUSTOMS,EXCISE &
                        SERVICE TAX APP.TRIBUNAL,BANGALORE
APPELLANT/S:

               COMMISSIONER OF CUSTOMS
               CUSTOM HOUSE, KOCHI - 682 009.

               BY ADVS.
               SMT.SINDHUMOL.T.P., CGC
               SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS



RESPONDENT/S:

               M/S. VALLABHADAS & COMPANY
               42/1996(2), ELAVANGAL HOUSE,1ST FLOOR, FRIENDS LANE, ST.BENEDICT
               ROAD,COCHIN - 682 018.

               BY ADV SRI.P.A.AUGUSTINE




     THIS CUSTOMS APPEAL HAVING COME UP FOR ADMISSION ON 30.11.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CUS.APPEAL 18/2018
                                -2-



                             JUDGMENT

S.V.Bhatti, J.

Heard Mr. Sreelal Warrier the learned Senior Standing

Counsel for Customs and Central Taxes and Mr.P.A Augustian,

the learned counsel for respondent.

2. The instant appeal is filed under Section 130 of the

Customs Act, 1962 (for short, 'the Act'). The Commissioner of

Customs, Cochin is the appellant in the subject appeal. The

appellant being aggrieved by order of Customs, Excise and

Service Tax Appellate Tribunal, South Zone Bench, Bangalore

(for short, 'CESTAT) dated 27.04.2017 filed the instant appeal.

Respondent referring to Annexure-A1 notification

No.102/2007-Customs dated 14.09.2007 issued in exercise of

powers conferred under Section 25 (1) of the Act, made a claim

for refund of additional customs duty paid by the respondent CUS.APPEAL 18/2018

for import of Rock Phosphate from Egypt. The dates of the

bills of entry etc. are not relevant for disposing of the appeal,

hence not adverted to. It is not in dispute that the respondent

got the clearance of goods imported upon paying Special

Additional Duty at the rate of 4% on Rock Phosphate. The

respondent claimed refund of Rs.2,55,058/- from the

jurisdictional authority.

3. The claim was rejected and the respondent carried

the matter in appeal before the Commissioner of Customs

(Appeals) and on being unsuccessful, filed appeal before the

CESTAT and through the order impugned in the appeal, the

Tribunal accepted the claim for refund of Rs.2,55,058/-. Hence

the appeal.

4. Mr. P.A Augustian raises preliminary objection to

the maintainability and continuation of the appeal by relying

on notification No.390/Misc./163/2010-JC dated 17.12.2015,

which reads thus:

CUS.APPEAL 18/2018

Government of India

Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi

Subject: Reduction of Government litigation - Providing monetary limits for filing appeals by the Department before CESTAT/High Courts and Supreme Court - Regarding.

In exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 made applicable to Service Tax vide Section 83 of the Finance Act, 1944 and Section 131BA of the Customs Act, 1962 and in partial modification of earlier instruction issued from F. No. 390/Misc./163/2010-JC dated 17-8-2011 [2011 (270) E.L.T. (T27)], the Central Board of Excise & Customs (hereinafter referred to as the Board) fixes the following monetary limits below which appeal shall not be filed in the Tribunal, High Court and the Supreme Court:

           S. No.       Appellate Forum            Monetary Limit

           1            CESTAT                     RS.10,00,000/-

           2.           HIGH COURTS                RS.15,00,000/-

           3.           SUPREME COURTS             RS.25,00,000/-

2. In para 3 of the instruction, dated 17-8-11 a sub clause 'c' shall be added which shall read as "classification and Refunds issues which are of legal and/or recurring nature".

3. Except for above, all other terms and condition of instruction dated 17-8-11 stands.

5. It is not in dispute that the claim of refund accepted

in favour of the respondent comes within the fiscal limit CUS.APPEAL 18/2018

stipulated in the litigation policy of the Government by

notification dated 17.12.2015.

6. The learned Standing Counsel contends that the

acceptance of the argument of the respondent or allowing the

order of Tribunal to become final would have a cascading

effect on other cases where the Department is not fettered by

the notification to contest, and the view now taken by this

Court could be put against the Department. He insists upon

expressing our view on the scope and extent of application of

notification dated 14.09.2007.

7. We have taken note of the argument of Mr.Sreelal

Warrier. We are of the view that the argument or objection of

the Department can also be protected by preserving all the

contentions available in this behalf; open and intact to be

considered in a case which would satisfy the requirement of

litigation policy. Therefore, we are convinced that the appeal

at the instance of the appellant could be disposed of in terms CUS.APPEAL 18/2018

of the notification dated 17.12.2015. However, it is made clear

that disposal of the appeal shall not be understood as, in any

manner, this Court accepting the view taken by the Tribunal in

interpreting the notification dated 14.09.2007 and all the

contentions are left open. The Revenue is given liberty to

urge all the contentions notwithstanding the disposal of the

appeal.

Customs Appeal is disposed of as indicated above.

Sd/-

S.V.BHATTI JUDGE

Sd/-

BASANT BALAJI JUDGE

JS CUS.APPEAL 18/2018

APPENDIX OF CUS.APPEAL 18/2018

PETITIONER'S ANNEXURES

ANNEXURE A1 TRUE COPY OF THE NOTIFICATION NO.102/2007 CUS DATED 14.09.2017 ISSUED BY MINISTRY OF FINANCE (DEPARTMENT OF REVENUE) GOVERNMENT OF INDIA.

ANNEXURE A2 TRUE COPY OF THE ORDER-IN-ORIGINAL 424/2013 DATED 28.08.2013 ISSUED BY THE ASST. COMMR. OF CUSTOMS (REFUNDS).

ANNEXURE A3 TRUE COPY OF THE ORDER-IN-APPEAL NO.362/14 DATED 27.11.2014 ISSUED BY THE COMMR. OF CUSTOMS (APPEALS), COCHIN.

ANNEXURE A4 A TRUE COPY OF THE FINAL ORDER NO.20564-

20581/2017 DATED 27.04.2017 CESTAT, BANGALORE.

ANNEXURE A5 A TRUE COPY OF THE ORDER OF REFUNDS DATED 13.09.2017 ISSUED BY THE ASSISTANT COMMISSIONER CUSTOMS (REFUNDS).