Kerala High Court
The Commissioner Of Customs vs M/S. S.V.Sivalinga Nadar & Sons on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI
&
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
RP NO. 585 OF 2021
AGAINST THE JUDGMENT IN Cus.Appeal 3/2018 OF HIGH COURT OF KERALA,
ERNAKULAM
REVIEW PETITIONER/S:
THE COMMISSIONER OF CUSTOMS
CUSTOMS HOUSE, W/ISLAND, KOCHI-682 009.
BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENT/S:
M/S. S.V.SIVALINGA NADAR & SONS
POST BOX NO.75, (444) 86, PANDIT JAWAHARLAL NEHRU ROAD,
VILLUPURAM-605 602.
OTHER PRESENT:
CGC KRISHNA., ADV. K.S. SANTHI FOR THE RESPONDENT
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P. No.585/2021
-2-
ORDER
S.V. Bhatti, J.
The appellant in Customs Appeal No.3/2018 is the Review
Petitioner. Customs Appeal No.3/2018 was filed by the Revenue
being aggrieved by the Final Order No.21924/2017 dated
02.08.2017 on the files of Customs, Excise and Service Tax
Appellate Tribunal (CESTAT), Bangalore.
2. The Tribunal, through the order impugned in the
appeal, directed the Department to refund the amount
deposited during the investigation by the respondent. For the
reasons stated in the judgment under review, we were
constrained to dismiss the appeal filed by the Revenue.
2.1 The Revenue has come up by this Review Petition,
and for appreciating the grounds and the errors of law pointed
R.P. No.585/2021
out by the Revenue, the following portions from the review
petition are excerpted:
"11. In this context it is significant that the respondent did not
ever contest the liability of the firm to pay additional duty. But
the only objection was that the claim of the department was
exorbitant. It was in this context that the earlier order of the
CEGAT dated 01.03.1995 also directed fresh adjudication for
fixing the margin of profits (as extracted in para 3 of the
judgment in the above case). Hence, the final position is that
the respondent remains liable to pay the evaded
duty/additional duty as going to be adjudicated by the
Commissioner of Customs/adjudicating authority, pursuant to
the remand order dated 01.03.1995 issued by CEGAT/CESTAT.
Though this exercise could not be completed for administrative
reasons, the respondent cannot be exonerated from the liability
to pay duty before the final decision is taken after adjudication.
......
......
GROUNDS
A. In spite of the directions of the CESTAT contained under
final order dated 02.08.2017 the fact remains that the
respondent is still liable to pay the additional duty that may be
ultimately arrived at after adjudication by the Commissioner of
R.P. No.585/2021
Customs, as earlier directed by CEGAT vide final order dated
01.03.1995.
B. It is significant that all along the respondent remained liable
to pay additional duty; but the only dispute was regarding the
quantum on the ground that the margin of profits ought to
have been fixed after accounting for the admissible expenses
like warehousing charges and other incidental expenses
including the duty liability fixed on the goods. This is borne
out by the concluding paragraph o the final order dt.01.03.1995
of CEGAT. Under such circumstances complete and
unconditional refund of the amounts claimed by the
respondent would cause serious prejudice to the Department."
3. Learned ASGI appearing for the Review Petitioner
argues that the review is intended to protect the right of the
Department in determining and collecting the duty/additional
duty payable by the respondent herein against subject import.
The adjudication of the Tribunal and this Court eventually
overlook the problem from the perspective of the respondent,
which is duty-bound under the Customs Act to collect the duty
R.P. No.585/2021
from the respondent. While ordering a refund, the
duty/additional duty payable by the respondent to the Revenue
is not taken care of. Since substantial revenue is involved,
appropriate directions or liberty may be granted to the Revenue
to do the needful on the duty/additional duty payable by the
respondent.
4. We have excerpted the basis, both factual and legal,
for availing the relief of review. From the record, we are
satisfied that the grounds now raised do not relate to alleged
errors apparent on the face of the record, and no error, in fact,
is pointed out to us in the judgment under review. However,
from the circumstances now brought to our notice, we are of
the view that, firstly, the Department is independent and none
has restricted the authority or stifled the functional duty of the
Revenue to act in determining the duty/additional duty payable
by the respondent against the subject import in accordance
R.P. No.585/2021
with law.
4.1 We are persuaded not to entertain the review.
However, it is made clear that the Revenue is independent in its
authority and given liberty to proceed in accordance with law
in determining the duty/additional duty, as the case may be,
payable by the respondent by passing necessary orders.
Review Petition stands dismissed with the above
observations. No order as to costs.
Sd/-
S.V.BHATTI
JUDGE
Sd/-
BECHU KURIAN THOMAS
JUDGE
jjj
R.P. No.585/2021
APPENDIX OF RP 585/2021
PETITIONER ANNEXURE
Annexure A1 TRUE COPY OF THE FINAL ORDER OF CEGAT DATED
1.3.1995 IN APPEAL NO.602/91/MAS.
