Madras High Court
M/S.Tvarur Oils & Fats Private Limited vs Ministry Of Finance on 29 January, 2020
Author: Anita Sumanth
Bench: Anita Sumanth
Writ Petition No.33588 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 29.01.2020
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.33588 of 2019
and WMP. No.34054 of 2019
M/s.Tvarur Oils & Fats Private Limited
represented by its Assistant Manager
Statutory Compliance & HR/Authorised
Signatory
Mr.N.Johnson Kumar
...Petitioner
Vs
1. Ministry of Finance, Department of Revenue,
Represented by its Secretary,
Shastri Bhawan, New Delhi – 110 001.
2. Director General of Foreign Trade
Udyog Bhawan, H-Wing, Gate No.2,
Maulana Azad Road, New Delhi – 110 011.
3. The Assistant Commissioner of Customs,
Customs Divisions, No.4, First Lane Beach Road,
Nagapattinam – 611 001.
.. Respondents
Prayer: PETITION filed under Article 226 of The Constitution of India praying for
the issuance of Writ of Declaration declaring the actions of the respondents in
debiting a petitioners' duty credit scrips by amounts pertaining to the Social
Welfare Surcharge as being illegal, arbitrary, unconstitutional and contray to law
and consequently direct the respondents to refrain from debiting the petitioners'
duty credit scrips by amounts pertaining to the Social Welfare Surcharge and
from debiting any amount pertaining to BCD over and above the prescribed rate
1/4
http://www.judis.nic.in
Writ Petition No.33588 of 2019
on all future imports and re-credit the Social Welfare Surcharge component
already debited in all the MEIS and SEIS duty credit scrips.
For Petitioner : Mr.T.Shanmugam
For Respondents : Mr.Venkaraswamy Babu,
Senior Panel Counsel – R1 & R2
Mrs.Aparna Nandakumar
Senior Standing Counsel - R3
---------------
ORDER
The petitioner seeks a declaration to the effect that the debiting of duty credit scrips by amounts relating to the Social Welfare Surcharge is contrary to law. This very issue has been considered by a learned single Judge of this Court in Gemini Edibles and Fats India Pvt. Ltd. V. Union of India and others (W.P.Nos.24490 and 27452 of 2019 dated 03.01.2020), adverse to the assessee. The conclusion of the learned single Judge is as follows:
'43. In the result, the Writ Petitions are disposed of as follows:
(a) The petitioner is liable to pay the appropriate Social Welfare Surcharge on Basic Customs Duty in respect of the subject matter http://www.judis.nic.in93/96 W.P.Nos.24490 and 27452 of 2019 imported goods.
(b) However, recovery of such Social Welfare Surcharge cannot be done by making debit from the value of the scrips produced by the petitioner, as Social Welfare Surcharge is not the subject matter of exemption granted under Notification Nos.24 and 25 /2015.
(c) Consequently, the respondents are liable and thus, directed to re-credit the value of Social Welfare Surcharge so far debited from the scrips held by the petitioner, subject to a condition that the petitioner pays such Social Welfare Surcharge either in cash or in any other mode before the concerned respondent within a period of four weeks from the date of receipt of a copy of this order.2/4
http://www.judis.nic.in Writ Petition No.33588 of 2019
(d) On receipt of such payment, the respondents are directed to re-credit the value of the Social Welfare Surcharge so far debited from the scrips held by the petitioner, within a period of two weeks thereafter'
2. In the light of the aforesaid order, this Writ Petition is liable to be dismissed and I do so.
3. The learned single Judge has, while affirming the liability to pay Social Welfare Surcharge on Basic Customs Duty directed re-crediting of the value of the surcharge so far debited from the scrips held by the petitioner subject to the condition that the petitioner pays the surcharge either in cash or in any other acceptable mode within a period of four weeks from date of receipt of a copy of that order. Upon receipt of such payment, the respondents have been directed to once again re-credit the value of the surcharge within a period of two weeks thereafter.
4. The Central Board of Indirect Taxes and Customs (in short 'Board') vide Circular No.02/2020 – Customs dated 10.01.2020 has stated that past cases will not be disturbed and the payments already made through debit to the scrips be accepted as revenue duty credit and recovery in cash not be insisted in such matters. Though this constitutes a departure from the order of the learned single Judge, learned counsel, both for the assessee as well as revenue, would pray that this procedure, being simplified and easy to follow, may be preferable. They pray that the procedure set out by the Board be permitted to be followed. 3/4 http://www.judis.nic.in Writ Petition No.33588 of 2019 DR. ANITA SUMANTH, J.
5. Thus, while all remittances, going forward, shall be made by an assessee in cash or other acceptable modes, recovery and repayment for past periods shall not be insisted upon. The submissions of the learned counsel for the petitioner are accepted qua this case alone and without prejudice to challenge, if any, that may be pending or that may be made, to the order of the learned single Judge on the merits of the matter.
6. No costs. Connected Miscellaneous Petition is closed.
29.01.2020 Index : Yes/No Speaking Order/Non speaking Order sl To
1. Secretary, Ministry of Finance, Department of Revenue, Shastri Bhawan, New Delhi – 110 001.
2. Director General of Foreign Trade Udyog Bhawan, H-Wing, Gate No.2, Maulana Azad Road, New Delhi – 110 011.
3. The Assistant Commissioner of Customs, Customs Divisions, No.4, First Lane Beach Road, Nagapattinam – 611 001.
W.P. No.33588 of 2019 and WMP. No.34054 of 2019 4/4 http://www.judis.nic.in