Micromax Informatics Ltd., v. Principal Commissioner Of

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 23.01.2018 Coram The Hon'ble Mr.Justice T.S.Sivagnanam Writ Petition No.28278 of 2017 and W.M.P.No.30393 of 2017 Micromax Informatics Ltd., rep. through its Holder of Power of Attorney, Mr. Asad Shakeel.

...Petitioner

Vs.

1.

The Principal Commissioner of Customs (Air Cargo) Air Cargo Complex , Meenambakkam, Chennai - 600 027.

The Assistant Commissioner of Customs (Refunds Section) Office of the Principal Commissioner of Customs (Air Cargo) Air Cargo Complex , Meenambakkam, Chennai - 600 027.

...Respondents

Writ Petition, filed under Article 226 of the Constitution of India, for issuance of Writ of Mandamus, directing the Writ of Certiorarified Mandamus to call for records/ Writ of Certiorari to call for records comprised in the impugned orderin-original No.550/2017 (Refunds - Air) dated 19.09.2017, passed by the respondent No.2 and to quash the same, and direct the respondent No.2 to sanction the refund amount of Rs.14,06,31,932.49.

For Petitioner : Mr.Tarun Gulati and Mr. Shashi Mathew for M/s Karthik Sundaram For Respondents : Mr.A.P.Srinivas Special Panel Counsel

O R D E R

Heard Mr. Tarun Gulati and Mr. Shashi Mathew, the learned counsels representing M/s Karthik Sundaram, the learned counsel appearing for the petitioner and Mr.A.P.Srinivas, the learned Special Panel Counsel for the respondents. The petitioner has filed this Writ Petition, challenging the order passed by the second respondent, being an order-in-original, bearing No.550 of 2017, (Refund - Air), dated 19.09.2017, by which, the petitioner's four refund claims for Rs.14,06,31,932.49, have been rejected for want of re-assessment under Section 27 of the Customs, Act, 1962.

3.

The petitioner has raised several grounds, challenging the impugned order, and in particularly, that the second respondent was bound by the decision of this Court, in W.P.No.3486 of 2016, dated 18.04.2017, has stated that, apart from the above grounds, they are other grounds raised by the petitioner, questioning the correctness of the impugned order. Interestingly, the Department themselves have preferred an Appeal against the impugned order before the Commissioner of Customs (Appeal) on 13.12.2017. In the grounds of Appeal, the Department has contended that the Lower Adjudicating Authority passed the order-in-original (impugned order herein) without examining the reasons mentioned in the order passed by this Court, dated 18.04.2017, in W.P.No.3486 of 2016, i.e., without complying with the direction enumerated therein.

Therefore, it is contended that the order of Lower Adjudicating Authority (impugned order) is not acceptable. Ultimately, the prayer sought for in the Appeal before the Commissioner of Appeals is to set aside the order, dated 19.09.2017, impugned in this Writ Petition, and order for de nova adjudication by the Lower Adjudicating Authority, to comply with the direction issued by the Court, in the earlier Writ Petition No.3486 of 2016. Thus, by way of Appeal Petition, the respondent Department themselves seek for remand of the matter to the Adjudicating Authority. 4.

While the learned counsel appearing for the petitioner may not have reservation on the matter being sent back, but, would submit the reasons for rejection of the petitioner's refund claim is wholly unjustified, and there should be a direction to process the application and grant refund. As this Court has found that the impugned order is not consonance with the earlier direction issued by the Court, in W.P.No.3486 of 2016, dated 18.04.2017, and the Department themselves have realized the same, this Court is inclined to allow the Writ Petition.

5.

Accordingly, this Writ Petition is allowed, the impugned order is set aside, and the matter is remanded to the Lower Adjudicating Authority for de nova adjudication, who shall consider the petitioner's refund claim and proceed with in accordance with law. Considering the fact that the matter has been lingering for a long time, the de nova adjudication shall be completed within a period of 60 days from the date of receipt of a copy of this order, making it clear that the petitioner shall extend full cooperation in the adjudication process. No costs. Consequently, connected Writ Miscellaneous Petition is closed.

sd/dn Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar To 1.

The Principal Commissioner of Customs (Air Cargo) Air Cargo Complex , Meenambakkam, Chennai - 600 027.

The Assistant Commissioner of Customs (Refunds Section) Office of the Principal Commissioner of Customs (Air Cargo) Air Cargo Complex , Meenambakkam, Chennai - 600 027.

+1cc to M/s.Karthick Sundaram, Advocate SR.no.4874 +1cc to M/s.A.P.Srinivas, Advocate Sr.No.5066 KAN(CO) sm:16.2.2018 Writ Petition No.28278 of 2017