Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Rachna Gupta (Judicial Member) allowed an appeal which was filed against the order of Commissioner (Appeals) in which he had wrongly invoked the principle of unjust enrichment while rejecting the refund of the appellant.

The appellant in the present case had imported 3000 MT of Aluminium Nitrate from Indonesia. At the time of filing home consumption clearance, appellant had claimed preferential rate of Basic Customs Duty (BCD) @ 5% under Notification No.46/2011 Entry No. 358(1) against BCD @ 7.5%. However, at that time, he could not produce original certificate of origin with authentic signatures. Accordingly, provisional assessment was resorted for. The bills were, therefore, assessed provisionally in terms of section 18(1) of the Customs Act, 1962, however, by extending the aforesaid notification benefit. The appellant later submitted the original certificate of origin along with original revenue deposit challans with the request for finalization of the provisional assessment. The appellant also requested for refund of aforesaid revenue deposit of Rs.15,09,146/-. The original authority after examining the applicability of principles of unjust enrichment and considering the certificate issued by the appellant’s Chartered Accountant, sanctioned the aforesaid refund. However, review order passed under section 129D(2) of the Customs Act, 1962 that the Deputy Commissioner of Customs, Visakhapatnam was required to file an appeal against the said Order-in-Original. The said appeal of the department had been adjudicated thereby setting aside the Order-in-Original. Being aggrieved, the importer had filed the present appeal before this Tribunal.

The appellant had submitted that the BCD as was applicable to the import of Aluminium Nitrate made by the appellant was @ 5% in terms of Notification No.46/2011 Entry No. 358(1). However, a provisional assessment was resorted to for want of certain documents and customs duty @ 7.5% was paid by the importer. At the time of final assessment, the benefit of notification was extended. Accordingly, the appellant became entitled for the refund of the duty paid to the extent of excess 2.5% thereof.

The Tribunal assessed the two findings given by the Commissioner (Appeals) while rejecting the refunds:

  1. i) that the appellant/assessee has not proved constructively with the supporting documents that the duty paid is not charged to the buyer and whether there was any change in the price of the goods produced by them to that effect.

(ii) CA certificate is not sufficient to show that burden has not been passed on to other persons.

The Tribunal was of the view that the said document was opined to be a sufficient document to ascertain whether the incidence of duty has or has not been passed on to the customers as the cost of the product because the books of account are the only way for examining the same. If an amount is shown in books of accounts as cost of material the amount has to be debited from the cash account and has to be credited towards expenses of materials account in the profit and loss statement. On the other hand, if the burden of duty has been borne by the manufacturer itself, the amount shall be debited in the cash account and a credit as receivables shall be shown in the books of accounts. The tribunal drew support from various decisions of Uniword Telecom Ltd. v. CCE, 2017 (358) ELT 666 (Tri-All.), Savita Oil Technologies Ltd. v. CCE, 2017 (358) ELT 331 (Tri-Mumbai).

The Tribunal distinguished the decisions of Hindustan Petroleum Corprn. Ltd. v. Commissioner of Customs, 2015 (328) ELT 410 and UOI v. Solar Pesticides (P) Ltd., 2000 (116) ELT 401 (SC) stating that they were wrongly applied to the facts of the present case which simply talks about the documents to be mandatorily provided in terms of section 27(1A) of the Customs Act to prove that there has been no unjust enrichment.

The Tribunal allowed the appeal and finally held that the findings of Commissioner (Appeals) while rejecting the refund of Rs.15,09,146/- which admittedly was an excess amount paid by the appellant, over and above his liability of paying BCD @ 5% in terms of Notification No. 46/2011 Entry No. 358(1), was not sustainable.[Indian Explosives (P) Ltd. v. Commr. Of Customs & ST, Customs Appeal No. 30258 of 2019, decided on 03-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and KM Joseph, JJ decided some important questions dealing with the Hindu Religious and Charitable Endowments Act, 1959 and held that the Commissioner, while hearing the appeal under Section 69 of Act, 1959, is not a Court. It said,

“When an appeal is provided against the order of the Commissioner under Section 69 to the Court which is defined under Section 6(7), there is no question of treating the Commissioner as a Court under the statutory scheme of Act, 1959.”

The Court also held that the applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court. It further held,

“Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissione while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act.”

On the question whether the statutory scheme of Act 1959 indicate that Section 5 of Limitation Act is applicable to proceedings before its authorities, the Court said that There is no other provision in the scheme from which it can be inferred that Act, 1959 intended applicability of Section 5 of the Limitation Act to proceedings of appeal before the Commission.

[Ganesan v. Commissioner, Tamil Nadu Hindu Religious and Charitable Endowments Board, 2019 SCC OnLine SC 651, decided on 03.05.2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of A.K. Rath, J. allowed the petition filed that challenged the order which allowed the appointment of an Amin Commissioner for local investigation under Order 26 Rule 9 CPC for the suit land.

The facts of the case were that the plaintiff-opposite party instituted the suit for declaration of right, title and interest, confirmation of possession and recovery of possession. Case of the plaintiff was that he was the owner of the suit land. Defendants filed a written statement denying the assertions made in the plaint. Case of the defendants was that the plaintiff had no title over the suit land and the defendants purchased the same by means of a registered sale deed. While matter stood thus, the plaintiff filed an application under Order 26 Rule 9 CPC for the appointment of a commissioner for demarcation of the property. Defendants filed an objection to the same. The Trial Court appointed a commissioner for local investigation. Mr. P.K. Satapathy, the counsel for the petitioners submitted that there was no justifiable reason to appoint a survey knowing commissioner in the factual scenario. The dispute did not pertain to demarcation or identification of the land.

The Court held that since both parties were claiming title over the suit land, it was not per se a ground to appoint a commissioner. The plaintiff could adduce evidence to substantiate the case. The dispute did not pertain to the area or identification or measurement or location of the land. Thus the Court had traveled beyond its jurisdiction in appointing a commissioner. The impugned order was quashed and the petition was allowed. [Regional Coop. Marketing Society v. Amarnath Saraph, 2019 SCC OnLine Ori 172, Order dated 19-04-2019]

Cabinet DecisionsLegislation Updates

The Union Cabinet chaired by the Prime Minister Narendra Modi has approved the proposal for Creation of two (2) posts of Commissioners in the Office of the Chief Commissioner for Persons with Disabilities (CCPD), in terms of provisions of The Rights of Persons with Disabilities (RPwD) Act, 2016. Out of the two posts of Commissioners, one Commissioner will be a person with disability.

The above two Commissioners will assist the CCPD in discharging his statutory functions as per provisions of the said Act. This would enable the Office of CCPD to look into the complaints of persons with disabilities expeditiously, besides strengthening the monitoring mechanism overseeing the implementation of the RPwD Act, 2016.

[Press Release dt. 28-02-2019]


Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Shivaji Pandey, J. in a civil writ petition held that when an authority has been empowered to hear a matter, it is that authority alone which has the power to decide the said matter, and this power cannot be delegated to another officer.

The present matter related to Anganbari Sevika at the time when Commissioner was empowered under the scheme to hear and decide the appeal. The petitioner, being aggrieved by a certain letter filed an appeal before the Commissioner, Magadh Division, Gaya who, instead of hearing and deciding the same, transmitted it to the Deputy Director, Department of Social Welfare, Magadh Division, Gaya to hear and decide the appeal.

The Court remarked that when a statutory provision authorized the Commissioner to decide the appeal and, the said provision neither carried with it a power of delegation nor did it empower the Commissioner to transmit the appeal and get it decided by an officer not empowered to hear and decide the appeal, then any decision taken by such an officer would be a void order in the eyes of law. 

In view of the above, the order of Deputy Director was quashed and the matter was remanded back to the Commissioner with a direction to decide the appeal and pass an order in accordance with law.[Sarswati Devi v. State of Bihar,2018 SCC OnLine Pat 2040, decided on 19-11-2018]