Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 21ST DAY OF JULY 2023 / 30TH ASHADHA, 1945 WP(C) NO. 36583 OF 2018 PETITIONER/PETITIONER: M/S. MRF LIMITED, REP BY ITS DEPUTY GENERAL MANAGER MATERIALS, MR ABU SKARIA KANDATHIL, NO. 114 GREAMS ROAD, CHENNAI-600 006. BY ADV E.V.MOLY BY RAMKUMAR RESPONDENT/RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF CUSTOMS (REFUNDS), CUSTOM HOUSE, COCHIN-682 009, KERALA. 2 THE COMMISSIONER OF CUSTOMS CUSTOM HOUSE, COCHIN-682 009, KERALA. BY ADV SRI.P.R.SREEJITH, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS R.HARISHANKAR-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 21st day of July, 2023.
1. Heard Sri. Ramkumar, learned counsel for the petitioner and Sri. Sreejith, learned Standing Counsel.
2. Petitioner company imported Rubber anti-oxidant
through Cochin Customs and paid 10% basic customs duty as against 5% basic customs duty in terms of customs notification No.52/2011 dated 25.06.2011. The petitioner filed refund claim before the Assistant Commissioner of Customs, Cochin for refund of the excess amount of duty paid. The said claim for refund was rejected by the order in O.No.470/2012 on the ground that without modifying the original assessment, refund could not be
processed and sanctioned. The appellate authority and the Tribunal has also rejected the appeals on the same ground.
3. Being aggrieved by the said order, petitioner filed an
appeal before a Division Bench of this Court being Customs Appeal No.16/2017. This Court vide order dated 19.12.2017, set aside the order passed by the Tribunal and remanded the matter to the Tribunal with direction to pass a fresh order by adverting to the contentions of the petitioner and reasons for its
conclusion.
4. The Tribunal on remand, vide the order dated 06.04.2018 set aside the order denying refund of excess amount paid by the
petitioner. The Tribunal by placing reliance on the decisions passed in the cases of Bennet Coleman & Co. v. Custom Commissioner Banglore [2008-TIOL-1341-CESTAT-BANG], Aman Medical products Ltd. v. Custom Commissioner, Delhi [2009-TIOL-566-HC-DEL-CUS], Hero Cycles Ltd. v. UOI [2009-TIOL-317-HC-MUM-CUS] and Micromax Informatics Ltd. [2017-TIOL-1302-HC-MAD-CUS] etc, held that the
order denying the refund on the ground that the assessee has not
challenged the assessment order, which is final is not sustainable in law in view of the judgments of the various High Courts and the Tribunal.
5. The Tribunal had remanded the case back to the original
authority to consider the claim for refund after considering the law declared by the several High Courts and the Tribunal which were relied on by the Tribunal in its order of remand.
6. On remand, the claim of the petitioner has again been denied on the ground that the Supreme Court in the case of ITC ltd. v. Commissioner of Central Excise Kolkata IV [(2019) 17 SCC 46]
held that the claim of refund of the excess amount of the tax paid
by the assessee, is not maintainable without challenge to the assessment order.
7. Learned counsel for the petitioner submits that the
original authority was bound to follow the directions issued by the Tribunal. He submits that the law declared by the Supreme Court should have been ignored by the original authority, and it should have processed the claim for refund of tax amount paid by the petitioner as per the direction issued by the Tribunal.
8. In support of this contention, Learned counsel for the
petitioner has placed reliance on the judgment of the Supreme Court in the case of R. Unnikrishnan and another v. V.K. Mahadevan and others, besides the judgment in the case of RBF RIG Corporation, Mumbai v. The Commissioner of Customs (Imports) [2011 (264) ELT 486 (SC)].
9. Learned Counsel appearing for the Revenue Department
submits that the Revenue Department did not challenge the order
passed by the Tribunal, whereby the matter was remanded to the original authority. The Revenue Department had already challenged the decisions relied on by the Tribunal before the
Supreme Court. When the matter was pending before the Supreme Court, the claim of the petitioner had been rejected. It is further submitted that before the claim for refund could be finalised, the Supreme Court reversed the view of the High Courts and the Tribunal and held categorically that without challenge to the assessment order, an assessee cannot claim refund of the excess amount paid by him even by mistake.
10. Learned counsel for the Revenue Department further
submits that the Supreme Court has reversed the law enunciated by several High Courts and the Tribunal, and the original authority was bound to follow the law declared by the Supreme Court.
11. I have considered the submissions advanced by the learned counsel for the parties.
12. The judgments which were relied on by the Tribunal in
its judgment dated 06.04.2018, were challenged before the Supreme Court by the Revenue Department and the challenge was pending when the order was passed by the Tribunal on 06.04.2018. Therefore, it cannot be said that the view taken by the High Court had attained finality before the Tribunal passed the order on 06.04.2018. Further, I am of the view that if direction issued by the Tribunal or view taken by the Tribunal or High Court, is found to be incorrect by the Supreme Court, on remand, by the Tribunal on the erroneous view, the assessing
authority would be required to follow the law declared by the superior court and not erroneous view of the Tribunal. The assessing authority cannot ignore the law declared by the supreme Court only on the ground that the Tribunal had given the direction to process the claim as per the directions issued by the Tribunal and the view of the Tribunal has been held to be erroneous by the Supreme Court.
13. Therefore, I do not find any substance in the submission
of the learned counsel for the petitioner that the original authority was bound to process the claim of the petitioner for refund in accordance with the direction issued by the Tribunal though the Supreme Court has taken a different view in the matter. In view there of, the writ petition fails and is hereby, dismissed. Sd/-
rps/ DINESH KUMAR SINGH, JUDGE APPENDIX OF WP(C) 36583/2018 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF CUSTOMS NOTIFICATION 52/2011 DATED 25.6.2011.
EXHIBIT P2 TRUE COPY OF REFUND OF CLAIM DATED 1.6.2012. EXHIBIT P3 TRUE COPY OF ORDER-IN-ORIGINAL NO.470/12 DATED 6.9.2012. EXHIBIT P4 TRUE COPY OF ORDER IN APPEAL NO.COC-CUSTM-000-APP-238-
14-15 DATED 16.7.2014. EXHIBIT P5 TRUE COPY OF FINAL ORDER NO.20379/17 DATED 16.3.2017. EXHIBIT P6 TRUE COPY OF HIGH COURT CUSTOMS APPEAL NO.16/17 DATED 19.12.2017. EXHIBIT P7 TRUE COPY OF TRIBUNAL FINAL ORDER NO.20549/18 DATED 6.4.2018. EXHIBIT P8 TRUE COPY OF ORDER-IN-ORIGINAL NO.590/18 DATED 7.9.2018 PASSED BY THE IST RESPONDENT. EXHIBIT P9 TRUE COPY OF BOARD CIRCULAR 24.2.2003 AND CIRCULAR DATED 26.6.2014. EXHIBIT P10 TRUE COPY OF DHIREN CHEMICALS INDUSTRIES REPORTED IN 2002 TIOL-83-SC-CX-CB. EXHIBIT P11 TRUE COPY OF PN 65 ISSUED BY CHENNAI CUSTOMS ON REFUNDS.