Gujarat High Court
M/S Amit Cotton Industries Throu ... vs Principal Commissioner Of Customs on 13 July, 2020
Author: Sonia Gokani
Bench: Sonia Gokani, N.V.Anjaria
C/MCA/356/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 356 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 20126 of 2018
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M/S AMIT COTTON INDUSTRIES THROU PARTNER, VELJIBHAI
VIRJIBHAI RANIPA
Versus
PRINCIPAL COMMISSIONER OF CUSTOMS
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Appearance:
MR D K TRIVEDI(5283) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Opponent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 13/07/2020
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. On 29.06.2020, we passed the following order: -
"Heard learned advocate Mr. D. K. Trivedi for the applicant.
By invoking jurisdiction under the Contempt of Page 1 of 5 Downloaded on : Tue Jul 14 21:02:43 IST 2020 C/MCA/356/2020 ORDER Courts Act, 1971, the applicant petitioner has complained of non-compliance of the directions, in particular para 36, issued by this court on 27.6.2019 in Special Civil Application No. 20126 of 2018.
Notice to the respondents, returnable on 8.7.2020. Direct service through E-mode is permitted in addition to the normal mode of service."
2. In this application for contempt the grievance on the part of the applicant is that the refund claim of the IGST has been illegally withheld by the respondent despite the specific directions issued by this Court on 27.06.2019 in Special Civil Application No. 1260 of 2018. It is further the grievance on the part of the applicant that reiteratively the request for refund of the amount along with the interest has made,without any avail,therefore, the aggrieved petitioner is before this Court seeking to initiate the action against the respondent authority.
3. In response to the order of issuance of notice, affidavit- in-reply is filed by the Assistant Commissioner of Customs where the emphasize is made on the fact that it is not the role of the respondent in non-sanctioning of the refund since it is system driven and it is system based, on the declaration Page 2 of 5 Downloaded on : Tue Jul 14 21:02:43 IST 2020 C/MCA/356/2020 ORDER made by the petitioner at the time of export. It is also emphasized that the exporters have since already availed the higher drawback, the IGST refund of these shipping bills have been withheld by the system. The main issue has so far not finalized by the Apex Court and therefore, the department is desirous of moving the Apex Court against the judgment and order of the Division Bench.
4. We have heard learned advocate Mr. D.K.Trivedi appearing for the applicant. According to whom, the law permits making the request for IGST, when the applicant chooses to refund the higher due drawback. It is further his say that circular of the Government of India, Ministry of Finance has also permitted this. One year's time has already passed and had the department been serious about the same as ostensibly urged, it could have moved earlier. After the Division Bench having held the applicant having entitled to claim the IGST in regard to the goods exported, no further delay can be permitted. He also has made a grievance that till date, no petition has been filed before the Apex Court. Page 3 of 5 Downloaded on : Tue Jul 14 21:02:43 IST 2020 C/MCA/356/2020 ORDER
5. Learned advocate Mr. Parth Bhatt has strenuously urged that there has been some delay on the part of the department but that should not be the ground for the Court to deny the request of approaching the Apex Court. The instructions have already been conveyed and it may not take longer time before the department chooses to challenge the order of the Division Bench. He further has urged that the system itself does not permit once having availed the higher due drawback when refunded, as happened in case of the present applicant and request is made to switching off the same by claiming the IGST. He emphatically submitted that there is no decision of the Apex Court on this issue and hence, he fervently made a request for adjournment for some time to avail the department some more time to approach the Apex Court.
6. Noticing the contents of reply, time of one week is permitted to the respondent to approach the Apex Court. We are conscious of the fact that the judgment which is sought to be implemented by the applicant - original petitioner is dated 27.06.2019. One year has already gone. In one week's Page 4 of 5 Downloaded on : Tue Jul 14 21:02:43 IST 2020 C/MCA/356/2020 ORDER time, if the respondent does not move the Apex Court, the matter shall be proceeded on merits.
7. Matter to appear on 20.07.2020.
(SONIA GOKANI, J) (N.V.ANJARIA, J) MISHRA AMIT V./Bhoomi Page 5 of 5 Downloaded on : Tue Jul 14 21:02:43 IST 2020