Delhi High Court – Orders
M/S Vishal Video And Appliances Pvt. Ltd vs Commissioner Of Customs, Acc(Import) on 24 January, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh, Dharmesh Sharma
$~12 to 18, 20 to 24 & 26 to 44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CUSAA 2/2025, CM APPL.992/2025
M/S VISHAL VIDEO AND APPLIANCES PVT. LTD .....Appellant
Through: Mr. Yogendra Aldak, Mr. Agrim
Arora, Ms. Purvi Sinha & Mr. Rishav
Kumar, Advs. (IN ALL MATTERS)
versus
COMMISSIONER OF CUSTOMS, ACC(IMPORT) .....Respondent
Through: Mr. Aditya Singla, SSC and Mr.
Ritwik Saha and Mr. Umang Misra,
Advs. with Mr. Rajeev Ranjan, DC
(Legal) ACC Import. (IN ALL
MATTERS)
Mr. Harpreet Singh, Senior Standing
Counsel along with Ms. Suhani
Mathur and Mr. Shivang Chawla,
Advs. (M: 9811253531) (IN ALL
MATTERS)
WITH
+ CUSAA 3/2025, CM APPL996/2025
+ CUSAA 4/2025, CM APPL1001/2025
+ CUSAA 5/2025, CM APPL1003/2025
+ CUSAA 6/2025, CM APPL1007/2025
+ CUSAA 7/2025, CM APPL1009/2025
+ CUSAA 8/2025, CM APPL1014/2025
+ CUSAA 10/2025, CM APPL1018/2025
+ CUSAA 11/2025, CM APPL1020/2025
+ CUSAA 12/2025, CM APPL.1022/2025
+ CUSAA 13/2025, CM APPL.1024/2025
+ CUSAA 14/2025, CM APPL.1027/2025
+ CUSAA 16/2025, CM APPL.1031/2025
+ CUSAA 17/2025, CM APPL.1033/2025
+ CUSAA 18/2025, CM APPL.1035/2025
+ CUSAA 19/2025, CM APPL.1037/2025
+ CUSAA 20/2025, CM APPL.1040/2025
+ CUSAA 21/2025, CM APPL.1042/2025
CUSAA 2/2025 & connected matters Page 1 of 8
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
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+ CUSAA 22/2025, CM APPL.1044/2025
+ CUSAA 23/2025, CM APPL.1046/2025
+ CUSAA 24/2025, CM APPL.1048/2025
+ CUSAA 25/2025, CM APPL.1051/2025
+ CUSAA 26/2025, CM APPL.1053/2025
+ CUSAA 27/2025, CM APPL.1056/2025
+ CUSAA 28/2025, CM APPL.1058/2025
+ CUSAA 29/2025, CM APPL.1060/2025
+ CUSAA 30/2025, CM APPL.1062/2025
+ CUSAA 31/2025, CM APPL.1064/2025
+ CUSAA 32/2025, CM APPL.1066/2025
+ CUSAA 33/2025, CM APPL.1069/2025
+ CUSAA 34/2025, CM APPL.1072/2025
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE DHARMESH SHARMA
ORDER
% 24.01.2025
1. This hearing has been done through hybrid mode.
2. These appeals have been filed by the Appellant under Section 130 of
the Customs Act, 1962 challenging the impugned Final Order No. 55859-
55891/2024 dated 4th June, 2024 passed by the Customs Excise & Service Tax
Appellate Tribunal (hereinafter ‘CESTAT’). In order to appreciate the
contentions raised, the background in these appeals deserves to be captured.
3. The Appellant is a Company, incorporated under the Companies Act,
1956, engaged in trading of electronic products such as mobile phones etc,.
As part of its business activities, the Appellant had imported mobile
handsets/cellular phones for which various bills of entry were filed during the
years 2014-15 and 2015-16.
4. The Appellant’s case is that it was deprived from claiming the tax
benefit in respect of the above said imports in terms of Notification No.
CUSAA 2/2025 & connected matters Page 2 of 8
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12/2012-CE dated 17 March, 2012, due to restrictions imposed by Circular
No. 37/2001-Cus. dated 18th June 2001.
5. However, the issue of applicability of a similar notification, being
Notification No. 06/2002-CE dated 01 March, 2002, on importers was settled
by the Hon’ble Supreme Court in the matter of SRF Ltd. vs. Commissioner
of Customs, Chennai [2015 (318) E.L.T. 607 (S.C.)], which allowed the
Appellant to claim the benefit under the said Notification dated 17 March,
2012.
6. Accordingly, the Appellant had sought refund of excess custom duty
paid with respect to thirty-one bills of entry. The Appellant, for this purpose,
had filed two refund applications before the Deputy Commissioner (Refunds)
on 25th September, 2015 categorizing the thirty-one bills of entry into two
batches consisting of 14 and 17 bills, respectively.
7. The said refund applications were rejected by Deputy Commissioner
(Refunds) vide Order dated 30th June, 2016 on the ground that the Appellant
has not provided re-assessed bills of entry in respect of said refund claims.
8. The Appellant had preferred an appeal against the said Order dated 30th
June, 2016 in W.P.(C) 7851/2016. The Coordinate Bench of this Court had
followed the decision in Micromax Informatics Ltd. v. Union of India,
[2016 (335) ELT 446 (Del)] and Yu Televentures v. Union of India,
[W.P.(C) 6750/82016, decided on 3rd August, 2016] and had, accordingly,
allowed the refund on 5th September, 2016 in the following terms.
“Since the facts are identical, we are of the opinion that
the operative portion of the order should be identical to
the one in Yu Televentures (supra). It is hereby directed
consequently that the petitioner’s refund claim is,
therefore, allowed. The respondents are directed to payCUSAA 2/2025 & connected matters Page 3 of 8
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to the petitioner, the claimed amount together with
interest due thereof upto the date of refund – which
shall be done within three weeks from today.”
9. The Department then preferred an appeal to the Supreme Court being
SLP(C) No. 2865/2017 assailing the High Court order dated 5th September,
2016, which was then tagged along with a batch of appeals with the lead
appeal – C.A.No. 293-294/2009 titled as ‘ITC Ltd. v. Commissioner of
Central Excise, Kolkata-IV‘.
10. The Supreme Court vide its judgment dated 18th September, 2019 in
ITC (supra) reversed the decisions in Micromax Informatics Ltd. (supra)
and Yu Televentures (supra). It was directed that until and unless the
assessment itself was finally modified, the refund could not be allowed. The
operative portion of the Supreme Court’s decision is set out below:
“45. Reliance was also placed on a decision of the
Rajasthan High Court with respect to service tax in
Central Office Mewar Palace Organisation v. Union of
India. In view of the aforesaid discussion, we are not
inclined to accept the reasoning adopted by the High
Court, that too is also not under the provisions of the
Customs Act.
46. The decision in Intex Technologies (India) Ltd. v.
Union of India has followed Micromax. The reasoning
employed by the High Courts of Delhi and Madras does
not appear to be sound. The scope of the provisions of
refund under Section 27 cannot be enlarged. It has to be
read with the provisions of Sections 17, 18, 28 and 128.
47. When we consider the overall effect of the
provisions prior to amendment and post-amendment
under the Finance Act, 2011, we are of the opinion that
the claim for refund cannot be entertained unless the
order of assessment or self-assessment is modified in
accordance with law by taking recourse to theCUSAA 2/2025 & connected matters Page 4 of 8
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The Order is downloaded from the DHC Server on 29/01/2025 at 21:52:25
appropriate proceedings and it would not be within the
ken of Section 27 to set aside the order of self-
assessment and reassess the duty for making refund;
and in case any person is aggrieved by any order which
would include self-assessment, he has to get the order
modified under Section 128 or under other relevant
provisions of the Act.
48. Resultantly, we find that the order(s) passed by the
Customs, Excise and Service Tax Appellate Tribunal are
to be upheld and those passed by the High Courts of
Delhi and Madras to the contrary, deserve to be, and
are, hereby set aside. We order accordingly. We hold
that the applications for refund were not maintainable.
The appeals are accordingly disposed of. Parties to bear
their own costs as incurred.”
11. As per the Supreme Court’s decision in ITC (supra) refund
applications could not be directly entertained without the order of assessment
being modified through an order under Section 128 of the Customs Act, 1962
or under any other relevant provisions of the Act.
12. Pursuant to the above decision passed by the Supreme Court on 18th
September, 2019, the Appellant filed thirty-one appeals before the
Commissioner (Appeals) under Section 128 of the Customs Act, 1962 seeking
re-assessment of thirty-one bills of entry. The said appeals were accompanied
by thirty-one applications under Section 14 of Limitation Act, 1963 seeking
exclusion of the period of litigation i.e., from 21st October, 2014 (date of the
Assessment Order) to 18th September, 2019 (date of pronouncement of ITC
(supra)), in computation of the limitation period in filing of appeals.
13. The Commissioner (Appeals), vide the order dated 17th December
2020 rejected the said thirty-one appeals on two grounds namely,
(i) the Appellant was not litigating on proceedings of like nature as
CUSAA 2/2025 & connected matters Page 5 of 8
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mandated by Section 14 of Limitation Act, 1963 i.e., the previous
litigation sought for refund and the present appeal seeks re-
assessment.
(ii) the Appellant was not prosecuting in good faith in a wrong forum
lacking jurisdiction as mandated by Section 14 of Limitation Act,
1963.
14. These orders were again challenged before the CESTAT in Customs
Appeal No 50510 – 50540 of 2021. These appeals were tagged along with a
different yet related set of appeals preferred by the same Appellant in Customs
Appeal No 50091 of 2022 & 50286 of 2022.
15. In Customs Appeal No 50510 – 50540 of 2021, the CESTAT reversed
the above two findings of the Commissioner (Appeals) in reference to M.P.
Steel Corporation v. Commissioner of Central Excise [2015 (4) TMI 849 –
Supreme Court] and P. Sarathi v. State Bank Of India [2000 (5) SCC 355].
However, CESTAT dismissed the said appeals upon observing that the period
of limitation prescribed under Section 128 of the Customs Act, 1962 i.e., 90
days had lapsed even after excluding the period of litigation under Section 14
of the Limitation Act. The relevant paragraphs of the impugned CESTAT
order dated 4th June, 2024 read as under:
“85. The decision in ITC(supra) was rendered by the
Supreme Court on 18.09.2019 and thereafter the
appeals were filed before the Commissioner (Appeals)
on 17.12.2019 i.e. after a period of almost three months.
The total time taken by the appellant from 18.07.2015
upto 25.09.2015 and then from 18.09.2019 to
17.12.2019 is much more than the maximum period of
the 90 days contemplated under section 128 of the
Customs Act. Thus, even though the benefit of section
14 of the Limitation Act for exclusion of time periodCUSAA 2/2025 & connected matters Page 6 of 8
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from 25.09.2015 upto 18.09.2019 would be available to
the appellant, but still the 31 appeals would have to be
dismissed as having been filed beyond the time period
contemplated under section 128(1) of the Customs Act.
86. The Commissioner (Appeals), therefore, committed
по illegality in dismissing the appeals.”
16. The rationale in the order of the CESTAT is that, though, the appeals
were filed within 90 days of the passing of the judgment by the Supreme Court
in ITC (supra), the time which has elapsed between the bills of entry and the
application for refund by the Appellant would not be condonable and hence
the appeals were dismissed by CESTAT. The Appellant has preferred these
appeals against this order of CESTAT dated 4th June, 2024.
17. This Court, upon perusal of the appeals and documents annexed
herewith, has noticed that in Customs Appeal Nos.50510 – 50540 of 2021, the
number of days between the decision of Supreme Court in ITC (supra) i.e.,
18th September, 2019 and date of filing the appeals before the Commissioner
(Appeals) i.e., 17th December, 2019 is exactly 90 days. Therefore, the
primary question becomes whether the period elapsed between the date of
filing respective bills of entry and date of filing the application for refund
would be condonable beyond the statutorily prescribed period of 90 days or
not?
18. These matters have had a long history. The bills of entry date back to
2014 and the applications for refund were filed way back in 2015. After the
said applications were filed, in fact, the refund was allowed. These bills of
entry were subject matter of adjudication before this Court and the matter has
then travelled a long way till the Supreme Court. In the earlier round, the issue
CUSAA 2/2025 & connected matters Page 7 of 8
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The Order is downloaded from the DHC Server on 29/01/2025 at 21:52:26
of delay between the bill of entry and the application for refund has never
been raised and it has, therefore, reached a finality. That period cannot now
be calculated for the purpose of holding that the appeals filed before the
CESTAT after the judgment in ITC (supra) are delayed. In fact, the appeals
are filed within the 90-day period from the date of pronouncement of
judgment in ITC (supra). Even the benefit of Section 14 would have to be
given to the Appellant in this case in view of the fact that the fundamental
basis for the refund has itself been changed after the decision in ITC (supra)
by the Supreme Court. The delay in any case is, therefore, condonable. The
appeals deserve to be heard on merits.
19. The Appellant cannot be non-suited on the ground that the appeals are
barred by limitation.
20. Under these circumstances, the appeals are allowed. The appeals before
the Commissioner (Appeals) are held to be within the limitation period. In
view thereof, the Commissioner (Appeals) shall adjudicate the appeals on
merits and not on the ground of limitation.
21. All the appeals are disposed of. All pending applications (if any) are
disposed of.
PRATHIBA M. SINGH, J.
DHARMESH SHARMA, J.
JANUARY 24, 2025
dj/am
CUSAA 2/2025 & connected matters Page 8 of 8
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 29/01/2025 at 21:52:26