Madras High Court
M/S.Sammarth Overseas & Credits ... vs Union Of India on 11 August, 2021
W.P.No.33055 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.33055 of 2014
M/s.Sammarth Overseas & Credits Pvt., Ltd.,
Represented by its Director Mr.Sammarth Loya,
No.7-2-1851/2/A, Fatah Bagh,
Sanatnagar, Hyderabad – 500 018. ...Petitioner
Vs
1.Union of India,
Represented by its Secretary,
Department of Revenue, Ministry of Finance,
North Block, New Delhi – 110 001.
2.The Chairperson,
Central Board of Excise & Customs,
North Block, New Delhi – 110 001.
3.The Commissioner of Customs (Appeals)
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001.
4.The Assistant Commissioner of Customs (Refunds)
Custom Hose,
No.60, Rajaji Salai,
Chennai – 600 001 ... Respondents
1/8
https://www.mhc.tn.gov.in/judis/
W.P.No.33055 of 2014
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India to issue of Writ of Declaration, declaring the Condition No.2(b) of
Notification 102/2007-Customs dated 14.09.2007 of the provisions of the
Central Excise 1944, CENVAT Credit Rules 2004, Central Excise Rules
2002 and Customs Act 1962 as null and void so far as the Petition is
concerned and consequently, direct the fourth respondent herein to consider
the petitioner's refund claim in File No.S24/SAD/2219/12-REFUNDS
without applying the aforesaid condition.
For Petitioner : Mr.S.Murugappan
For Respondents : Mr.A.P.Srinivas
Senior Standing counsel
[For Income Tax]
For R2 to R4
No appearance for R1
ORDER
The relief sought for in the present writ petition is for a declaration to
declare the Condition No.2(b) of Notification 102/2007-Customs dated
14.09.2007 of the provisions of the Central Excise 1944, CENVAT Credit
Rules 2004, Central Excise Rules 2002 and Customs Act 1962 as null and
void so far as the Petition is concerned and consequently, direct the fourth
respondent herein to consider the petitioner's refund claim in File
No.S24/SAD/2219/12-REFUNDS without applying the aforesaid condition.
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W.P.No.33055 of 2014
2. The learned counsel appearing on behalf of the petitioner made a
submission that during the pendency of the writ petition, developments
occurred and the Hon'ble High Court of Madras already passed an order in
the case of PNP Polytex Private Limited Vs. Assistant Commissioner of
Customs (Refunds), Chennai, reported in 2018 (360) E.L.T. 964 (Mad)
and paragraph 6 of the judgment, which is relevant and the same is extracted
hereunder:
“6. Firstly, the proceedings were communicated to the
incorrect address. The petitioner had no notice of the
proceedings. Apart from that, before rejecting the petitioner's
claim, it appears that no notice of hearing was issued to the
petitioner. Though the statute does not mandate an opportunity
of personal hearing, as the impugned order rejecting the
petitioner's claim results in civil consequences, principles of
natural justice have to be read into the provisions and the
petitioner should have been afforded an opportunity, as the
impugned order is an order of adjudication. Therefore, on the
said ground, the impugned order calls for interference. Apart
from that, it has to be seen as to whether mere noncompliance
of a condition affixing rubber-stamp seal on the invoice would
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W.P.No.33055 of 2014
defeat the very refund claim. This issue was considered by the
Large Bench of the CESTAT in the case of Chowgule &
Company Pvt. Ltd., vs. Commissioner of Customs & C. Ex.
Reported in 2014 (306) E.L.T. 326 (Tri. - LB) and the Tribunal
considered some what similar case as that of the petitioner
pertaining to a commercial invoice and not a tax invoice, and it
was pointed out as follows.
''5.2 ..........For taking the credit, the quantum
of duty paid should be shown in the invoices and the
same should be shown separately for each type of
duties. In respect of a commercial invoice, which
shows no details of the duty paid, the question of
taking of any credit would not arise at all.
Therefore, non-declaration of the duty in the invoice
issued itself is an affirmation that no credit would be
available. Therefore, non-declaration / non-
specification of the duty element as to its nature and
quantum in the invoice issued would itself be a
satisfaction of the condition prescribed under clause
(b) of para 2 of the Notification 102/2007.
5.3 In the Mangalore Chemicals and
Fertilizers Limited's case (supra), the Hon'ble Apex
Court observed that a distinction, between the
provisions of a statute which are of a substantive
character and were built-in with certain specific
objectives of policy on the one hand and those which
are merely procedural and technical in nature on
the other, must be clearly drawn. It was further held
in the said decision that while interpreting an
exemption clause, liberal construction should be
imparted to the language thereof if the subject falls
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W.P.No.33055 of 2014
within the scope of the exemption. It was also held
that, the need to resort to any interpretative process
would arise only where the meaning is not manifest
on the plain words of the statute. As held by the
Hon'ble Apex Court in the New India Sugar Mills
Limited v. Commissioner of Sales Tax, Bihar [AIR
1963 S.C. 1207]- it is a recognized rule of
interpretation of statutes that expressions used
therein should ordinarily be understood in a sense in
which they best harmonize with the object of the
statute, and which effectuate the object of the
Legislature. Applying the ratio of these decisions to
the facts of the case before us, it can be seen that the
condition relating to endorsement on the invoice was
merely a procedural one and the purpose and object
of such an endorsement could be achieved when the
duty element itself was not specified in the invoice.
Since the object and purpose of the condition is
achieved by non-specification of the duty element,
the mere non-making of the endorsement could not
have undermined the purpose of the exemption. Thus
we concur with the view taken by this Tribunal in the
cases of Equinox Solution Limited and Nova Nordisk
India Private Limited (supra).”
3. In view of the developments occurred, the issues are to be
reconsidered by the 4th respondent / original authority.
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W.P.No.33055 of 2014
4. Thus, the matter is remitted back to the 4th respondent for fresh
consideration. Accordingly, the 4th respondent is directed to reconsider the
issues raised by the petitioner afresh on merits and in accordance with law
and by affording opportunity to the writ petitioner, take a decision and pass
orders as expeditiously as possible.
5. With these directions, the writ petition stands disposed of. No
costs.
11.08.2021
Speaking order/Non-speaking order
Index : Yes/No
Kak
To
1.The Secretary,
Union of India,
Department of Revenue, Ministry of Finance,
North Block, New Delhi – 110 001.
2.The Chairperson,
Central Board of Excise & Customs,
North Block, New Delhi – 110 001.
https://www.mhc.tn.gov.in/judis/
W.P.No.33055 of 2014
3.The Commissioner of Customs (Appeals)
Custom House,
No.60, Rajaji Salai,
Chennai – 600 001.
4.The Assistant Commissioner of Customs (Refunds)
Custom Hose,
No.60, Rajaji Salai,
Chennai – 600 001
https://www.mhc.tn.gov.in/judis/
W.P.No.33055 of 2014
S.M.SUBRAMANIAM, J.
Kak
W.P.No.33055 of 2014
11.08.2021
https://www.mhc.tn.gov.in/judis/
