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2017 Supreme(AP) 862
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
V. RAMASUBRAMANIAN, ABHINAND KUMAR SHAVILI, JJ.
The Commissioner of Customs, Visakhapatnam – Appellant
Versus
Gayatri Timbers Private Limited – Respondent
C.E.A. Nos. 57, 60, 61, 62, 66, 69, 71, 72, 74, 75 of 2017
Decided On : 12-10-2017
For the Appellant : Mrs. Sundari R. Pisupati.
For the Respondent: Mr. K. Vijay Kumar.
Headnote:Customs act 1962 Sec. 130A - Customs tariff act 1975 Sec. 25, 35, First Schedule - The revenue officer of Customs Department filed appeal challenging the order of Customs, Excise and service tax Appellate tribunal granting relief to the assessee – assessee imported timber logs into India, his imported products were falling within first schedule of the Customs tariff act 1975 according to which the goods shall be exempted from additional duty of customs – assessee filed for refund before the customs officer, all claims were partially allowed – some of the logs were not put into refundable category on the ground First: timber log were not sold as such but were cut into smaller pieces Secondly: smaller sizes of logs do not correlate to the items described in the import list – assessee contended that merely cutting logs into smaller pieces does not change their character, hence the appeal was filed, appeal dismissed by the commissioner there by assessee filed second appeal for CESTAT– CSTAT filed an application to modify the order stating that the assessee has to furnish 50% of the amount refunded by the tribunal on the guideline put down by the Supreme Court and the Gujarat High Court, the application for modification was dismissed – assessee filed writ petition directing the department to refund the money as per the order of CESTAT– Department stated that they had filed appeals, court observed no such appeals were filed hence the writ petition was allowed and refund was directed– The appellant filed an application for condonation of delay which the court allowed in between of objections raised by petitioner – held, even of the miscellaneous Applications were allowed that apartment would never have achieved what they required – the condition for furnishing of 50% Bank guarantee by the department did not help them – Tribunal has rightfully rejected the miscellaneous applications, all appeals are dismissed.
V. RAMASUBRAMANIAN, J.
1. The Revenue has come up with the above appeals under Section 130A of the Customs Act, 1962, challenging the orders of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) allowing the claims for refund made by the Assessee.
2. Heard Mrs. Sundari R. Pisupati, learned senior standing counsel for the Appellant and Mr. K. Vijay Kumar, learned counsel for the respondent-Assessee.
3. The respondent-Assessee imported timber logs under various bills of entry. The material imported by the respondent-assessee admittedly fall within the First Schedule to the Customs Tariff Act, 1975.
4. By a Notification bearing No. 102/2007-Customs issued on 14.09.2007 in exercise of the powers conferred by Section 25 (1) of the Customs Act, 1962, the Government of India exempted the goods falling within the First Schedule to the Customs Tariff Act, 1975, from the whole of the additional duty of the customs leviable under Section 3 (5) of the Customs Tariff Act, 1975, when imported into India for subsequent sale. Paragraph 2 of the said notification gave a list of conditions to be fulfilled by the importer, for availing the benefit of exemption.
5. The respondent-assessee filed claims for refund with the jurisdictional Customs Officer. All the claims made by the respondent-assessee were partially allowed by the jurisdictional Customs Officer. For easy appreciation of the extent to which the claims for refund were allowed, we are presenting in a tabular column, the details:-
| C.E.A. No. | Arising out of the Order-in-Original dated | Amount of refund claimed | Amount of refund sanctioned |
| 57 of 2017 | 08.01.2013 | Rs. 4,85,325.10 | Rs. 3,10,220.00 |
| 60 of 2017 | 28.09.2012 | Rs. 3,71,000.40 | Rs. 1,72,849.00 |
| 61 of 2017 | 05.11.2012 | Rs. 5,18,367.20 | Rs. 2,77,617.00 |
| 62 of 2017 | 20.12.2012 | Rs. 9,83,594.00 | Rs. 8,68,328.00 |
| 66 of 2017 | 10.05.2013 | Rs. 8,78,126.92 | Rs. 5,86,004.00 |
| 69 of 2017 | 20.12.2012 | Rs. 7,28,970.20 | Rs. 3,90,440.00 |
| 71 of 2017 | 08.10.2012 | Rs. 3,85,709.80 | Rs. 2,15,024.00 |
| 72 of 2017 | 17.09.2012 | Rs. 8,82,612.10 | Rs. 6,58,667.00 |
| 74 of 2017 | 24.09.2012 | Rs. 13,91,801.80 | Rs. 9,10,318.00 |
| 75 of 2017 | 05.11.2012 | Rs. 7,84,837.00 | Rs. 2,07,219.00 |
6. The disallowance of a part of the refund claim was on two grounds viz. (1) that the timber logs imported by the respondent-assessee were not sold as such by them, but were sold locally after sawning them and cutting them into smaller sizes and (2) that the logs cut into smaller sizes could not correlate to the items described in the import packing list.
7. Contending that the grounds of rejection were not traceable to the exemption notification and that the imported material did not lose their character merely because of being cut into smaller pieces, the respondent-assessee filed statutory appeals before the Commissioner (Appeals). The Commissioner (Appeals), dismissed all the appeals forcing the respondent- assessee to file second appeals before CESTAT. The CESTAT allowed all the appeals relying upon the decision of the Gujarat High Court in Commissioner of Customs vs. Variety Lumbers Pvt. Ltd. 2012 TIOL 821 HC-AHM-CUS. The Tribunal took note of the fact that as against the judgment of Gujarat High Court, Special Leave Petitions were filed and that the Supreme Court had already granted leave and issued notices, but did not grant an interim stay of the judgment of Gujarat High Court.
8. As against the orders of the CESTAT, the Appellant/Revenue did not choose to come up immediately with the statutory appeals under Section 130A of the Customs Act. On the contrary, the Department filed Miscellaneous Applications before the CESTAT seeking a modification of the order of
