Calcutta High Court (Appellete Side)
Gd Sara International Private Limited vs Assistant Commissioner Of Customs ... on 14 March, 2016
1
4 14.3.2016
W.P. 4119 (W) of 2016
gd Sara International Private Limited
Vs.
Assistant Commissioner of Customs (Export) &
Ors.
Mr. Vipul Kundalia
..for the Petitioner
Mr. R. Bhardwaj
..for the Respondents
The grievance of the petitioner is that the order impugned dated May 25, 2015 proceeded on the basis of an erroneous provision and assessed the claim for refund on the basis of the practice prior to the self-assessment regime.
According to the petitioner, prior to the self-assessment regime which was introduced in April, 2011, the duty payable would be assessed by the department and such order would be an appellable order that the assessee could challenge. However, under the self- assessment regime, it would be for the department to accept the self-assessment, 2 whereupon there would be no question of an appeal; but if the self-assessment was revised to the prejudice of the asseessee, it could be regarded as an appellable order.
The petitioner's case herein is that because of the divergence of opinion on the rate of duty, based on weight, payable in respect of the goods covered by the relevant shipping bill, the petitioner had made a self-assessment which was erroneous. The petitioner applied before the concerned Assistant Commissioner of Customs (Export) for a refund by claiming that in view of the weight of the goods, a lower rate may have been applicable. It is such application for refund which has been rejected by the order impugned dated May 25, 2015.
The respondents submit that the order impugned was appellable and such appeal ought to have been preferred within 90 days of the receipt of the order.
The petitioner says that since the 3 concerned Assistant Commissioner failed to apply the relevant provisions, the order has to be regarded as one passed in error of jurisdiction and, as such, amenable to challenge in this extraordinary jurisdiction. The petitioner also claims that there were 27 similar claims and the petitioner has taken time to assess the various claims and has filed this petition upon discovering that this is the only claim on which refund may be due.
Since it is evident from the order impugned that the concerned Assistant Commissioner has applied the provision of Section 149 of the Customs Act, 1962, which may not have been the apposite provision under the self-assessment regime, the order impugned dated May 25, 2015 is set aside with a request to the concerned Assistant Commissioner to afford the petitioner a hearing and decide the matter afresh in accordance with law within four weeks of the receipt of a copy 4 of this order.
It is made clear that nothing in this order would preclude the Assistant Commissioner from declining the refund, if that is the law in such regard.
W.P. 4119 (W) of 2016 is allowed as above, but without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.) 5