Madras High Court
M/S.Same Deutz Fahr India (P) Ltd vs The Commissioner Of Central ... on 17 February, 2021
W.A.No.425 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.02.2021
CORAM :
The Honourable Mr.Justice T.S.SIVAGNANAM
and
The Honourable Ms.Justice R.N.MANJULA
W.A.No.425 of 2021
and
C.M.P.No.1701 of 2021
M/s.Same Deutz Fahr India (P) Ltd.,
Rep. by its Joint General Manager-Finance,
S.Tamil Selvan,
No.72-M, SIPCOT Industrial Estate,
Ranipet - 632 403. ...Appellant
Vs
The Commissioner of Central Excise,
Chennai-III Commissionerate,
No.26/1, Mahatma Gandhi Road,
Nungambakkam,
Chennai - 600 034. ...Respondent
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent to set aside
the order dated 11.12.2020 passed in W.P.No.28045 of 2015.
For Appellant: Mr.S.Murugappan
For Respondent: Mr.A.P.Srinivas
Senior Standing Counsel
1/6
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W.A.No.425 of 2021
JUDGMENT
(Delivered by T.S.Sivagnanam,J)
This writ appeal, filed by the writ petitioner, is directed against
the order dated 11.12.2020 passed in W.P.No.28045 of 2015
2. The writ petition was filed challenging the Order-in-Original
dated 28.05.2015 passed by the respondent, the Commissioner of Central
Excise, Chennai - III Commissionerate. When the writ petition was
entertained in the year 2015, an order of interim stay was granted on
17.9.2015, which continued to remain in force till the writ petition was
disposed of.
3. From the materials placed before this Court, we find that no
counter affidavit was filed by the Department and when the writ petition
was taken up for hearing on 11.12.2020, the Court opined that the appellant
should avail alternative remedy. It is no doubt true that when a case arises
under the Taxation Statute, the assessee should be relegated to avail the
appeal remedy. However, this is a rule of discretion by exercising self
restraint by the Constitutional Courts. There have been several decisions of
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W.A.No.425 of 2021
the Hon'ble Supreme Court which have held that when writ petitions are
pending for several years and when they are taken up for final hearing, the
Court should seldom relegate the party to avail the alternative remedy as it
would be very harsh on the party to approach the statutory authority after
several years. Precisely, in the instant case, this has happened and after
nearly six years, the petitioner has been directed to avail the appeal remedy.
4. Therefore, we are of the view that at this juncture, no useful
purpose would be served in directing the appellant to file an appeal before
the Tribunal and more particularly when an argument was made before the
adjudicating authority. The point, which was canvassed by the assessee
would have wider ramification and may be applicable to other export
oriented units also. Though, in paragraph 10.5 of the order, the
Commissioner recorded the submission made on behalf of the appellant,
there is no finding as to whether the said submission merits consideration or
not.
5. It is brought to the notice of this Court by the learned counsel
for the appellant that the Directorate General of Export Promotion had
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W.A.No.425 of 2021
issued a clarification on 02.04.2008 and the said clarification would enure
in favour of the appellant/assessee. The said clarification is as hereunder:
“DIRECTORATE GENERAL OF EXPORT PROMOTION
(CBEC, Department of Revenue, Ministry of Finance,
Govt. of India)
First Floor, Hotel Janpath, New Delhi – 110001
EPABX No.: - 23344616, 23344622, Fax:- 011-23344624/630
F. No. DGEP/EOU/03/2007/879 Date:
02.04.2008
To
The Chief Commissioner of Central Excise,
Mumbai-I zone,
115, New Central Excise Building,
M.K. Road, Church Gate,
Mumbai - 400020
Sir,
Sub: Benefits of exemption notification issued under
section 5A of Central Excise Act on the on the goods
cleared into DTA by EOUs – Clarification in respect
of representation of M/s. A.R. Sulphonates Pvt. Ltd.,
Thane – reg.
Please refer to F.No. IV/16-Tech-16/MCX/CCO-
I/2008 dated 21.02.2008 on the above cited subject.
2. The issue has been examined. EOUs are required to pay
duties on their clearance to DTA equating such clearance at par
with imports in terms of proviso to Section 3 of the Central
Excise Act, 1944. For the purpose of calculating additional duty
(CVD) on imported goods under Section 3 of the Custom Tariff
Act, 1975, any general excise exemption as well as conditional
excise exemption, if conditions are satisfied, would be
applicable for determining the CVD liability. Thus, there is no
bar in applying an exemption notification issued under section
5A of the Central Excise Act for the purpose of computation of
CVD to be paid by EOUs on the goods cleared into DTA. The
restriction on EOUs for applying exemptions issued under
section 5A of the Central Excise Act is for the purpose that
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W.A.No.425 of 2021
EOUs should not pay excise duty only as in the case of
clearances from DTA units, unless so intended. This would
render section 3 of the Central Excise Act redundant which
require EOUs to pay central excise duty equivalent to the
aggregate of customs duties. However, as in the case of import,
wherein CVD is paid equal to excise duty as applicable,
exemptions of central excise duty shall also be applicable to
EOUs for computation of duty on DTA clearances.
It is, thus, viewed that there is no bar under the
proviso to Section 5A ibid for considering excise exemption
while calculating the additional customs duty component
payable by an EOU on DTA clearances. Hence, the unit would
be liable to pay duties based on applicable basic custom duty
and applicable additional customs (CVD) in terms of the
exemption vide Sl. No. 32 of notification No. 4/2006-CE dated
01.03.2006 on Sulphuric Acid subject to the condition 2 of the
Annexure to this notification.
4. In the light of the above, a suitable clarification may please
be issued to the field formation having jurisdiction over this
unit. The unit has been advised to contact your office.
5. This issues with approval of the Member (Cus & EP), CBEC.
Yours faithfully
(M. Vinod Kumar)
Addl. Director General (EP)”
6. Considering the fact that a clarification had been issued on
02.04.2008, it would be necessary for the Adjudicating Authority to
examine as to the applicability of the said clarification qua the appellant's
case. Therefore, we are inclined to remand the matter to the Adjudicating
Authority for de novo adjudication and take a fresh decision on merits and
in accordance with law.
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W.A.No.425 of 2021
T.S.SIVAGNANAM,J
AND
R.N.MANJULA,J
hvk
7. For the above reasons, the Writ Appeal is allowed.
Consequently, the writ petition is also allowed, the Order-in-Original dated
28.05.2015 is set aside and the matter is remanded back to the respondent
for a fresh consideration. The respondent shall afford an opportunity of
personal hearing to the authorized representative of the appellant, consider
their submission and take a fresh decision on merits and in accordance with
law. No costs. Consequently, connected miscellaneous petition is closed.
(T.S.S.,J.) (R.N.M.,J.)
17.02.2021
Index: Yes/No
Internet:Yes/No
Speaking Judgment/Non speaking Judgment
hvk
To
The Commissioner of Central Excise,
Chennai-III Commissionerate,
No.26/1, Mahatma Gandhi Road,
Nungambakkam, Chennai - 600 034.
W.A.No.425 of 2021
and
C.M.P.No.1701 of 2021
https://www.mhc.tn.gov.in/judis/
