RAJIV SHAKDHER,J. - (1.)Prefatory Facts : This writ petition is directed against the order dated 23-11-2015, passed by the second respondent. 1. 1 By virtue of the impugned order, the second respondent, has, in effect, returned four (4) refund applications filed by the appellant, qua various amounts, on the ground that they were premature. 1. 2 The reason furnished in the impugned order for coming to such a conclusion is pivoted on the second respondent's appreciation of the ratio of the judgment in the matter of : Priya Blue Industries v. Commissioner of Customs, 2004 (172) E.L.T. 145 (S.C.). Thus, according to the second respondent, in substance, the case for refund would arise, only, if, clearance made via self-assessment procedure, which is construed as an order, is either modified or revised.
(2.)In order to adjudicate upon the instant writ petition, the following relevant facts are required to be noticed : 2. 1 The petitioner is in the business of importing and selling electronic products, which includes mobile phones (its parts and accessories), tablets and television sets, etc. It appears, as a part of its business activities, over a period of time, the petitioner had imported mobile phones, qua which Bills of Entries (in short 'BEs') were filed. 2. 2 The petitioner claims that at the relevant point in time, i.e., at the time of clearance of the said goods, it was granted the benefit of concessional rate of duty. The petitioner, evidently, had been paying duty at the rate of 13.5% [comprising of 0% Basic Customs Duty (BCD), 13.5% Countervailing Duty (CVD) {including 1% National Calamity Contingent Duty (NCCD)}, 0% Education Cess, 0% Higher Secondary Education Cess and 0% Special Additional Duty (SAD)]. 2. 3 The petitioner, evidently, took the stand that, since, CVD imposed upon it, emanates from the provisions of Section 3(1) of the Customs Tariff Act, 1975, which provides that CVD shall be equal to the excise duty for the time being leviable on a like article produced or manufactured in India, it was entitled to the benefit of the following notifications, i.e., Notification No. 12/2012-C.E., (as amended by Notification No. 4/2014-C.E., dated 17-2-2014); and Notification No. 12/2015-C.E., dated 1-3-2015 - as its case came within the purview of Entry 263A of the said notification. 2. 4 For the sake of convenience, the relevant part of the said notification is extracted hereafter : JUDGEMENT_234_LAWS(MAD)4_2017_1.html 2. 5 A perusal of the notification would show that the mobile phones are liable to excise duty, either at the rate of 12.5%, or, at a concessional rate of 1%, in case, condition No. 16, as incorporated in the said notification, is satisfied. 2. 6 Condition No. 16 stipulates that a manufacturer will be imposed concessional rate of duty, only, if, no credit under Rule 3 or 13 of the Cenvat Credit Rules, 2004, has been taken in respect of the inputs or capital goods used in the manufacture of the goods, qua which, concessional rate of duty is claimed. For the sake of convenience, condition No. 16 is extracted hereafter :
"16. If no credit under rule 3 or 13 of the Cenvat Credit Rules, 2004, has been taken in respect of the inputs or capital goods used in the manufacture of these goods."
2. 7 It appears that, because of the Circular No. 37/2001-Cus., dated 18-6-2001, issued by the Central Board of Excise and Customs and the view taken by the Central Excise, Gold and Appellate Tribunal, Larger Bench, in the matter of : Puyesh Chemicals and Metals v. Commissioner of Central Excise, Bangalore, 2000 (38) RLT 588, the importers of goods, were claiming the benefit of concessional rate of CVD, as they did not, according to the view taken by the Tribunal in the aforementioned judgment, fulfil the requirements of condition No. 16, to which I have made a reference above. 2. 8 Given these circumstances, the petitioner was importing mobile phones, qua which, it paid duty at 13.5% (includes 1% of NCCD) and instead of 2% (including 1% NCCD), albeit, with effect from 1-3-2015. 2. 9 According to the petitioner, this position changed after the Supreme Court rendered its judgment in the matter of : SRF Industries v. Commissioner of Customs, Chennai, 2015 (318) E.L.T. 607 (S.C.). Via the said judgment, in effect, the Supreme Court ruled that SRF Industries, which was an importer of goods, was entitled to the benefit of the said exemption notification, which contained condition No. 20, which was similar to condition No. 16 obtaining in Notification No. 12/2012-C.E. The rationale being, as it appears, that since, the manufacturer of imported goods is situated outside India, and therefore, would be entitiled to take credit under the Cenvat Credit Rules, 2002, it shall be presumed that the condition for non-availment of concessional rate of duty, which was, the non-availment of Cenvat credit, stood satisfied.
(3.)Based on the aforesaid position in law, on 14-9-2015, the petitioner lodged four (4) refund claims in respect of imports made between April and July 2015. These refund claims pertained to 233 BEs. The details, with regard to the refund claims, are, for the sake of convenience, set out herein below : JUDGEMENT_234_LAWS(MAD)4_2017_2.html 3. 1 To be noted, in the interregnum, which is prior to the lodgement of the claim for refund, the petitioner had taken the stand that it was entitled to take the benefit of concessional rate of duty, i.e., 2% (which included NCCD of 1%), based on the judgment of the Supreme Court in SRF Industries case. These letters are dated 22-4-2015, 30-4-2015, 16-6-2015 and 19-6-2015. The said letters were addressed to the Deputy Commissioner of Customs. 3. 2 Despite the aforesaid stand having been taken by the petitioner, the respondents vide impugned order dated 23-11-2015, returned the refund applications.