The main legal point established in the judgment is the entitlement of the petitioner to claim a refund of duty under the amended provisions of Section 27 of the Customs Act, 1962, without having the assessment order modified or revised, and the requirement for the proper officer to pass a speaking order upon the lodging of a protest.

Prefatory Facts

1. 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 vs. Commissioner of Customs, 2004 (172) ELT 145 (SC). 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 Entires (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 not 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-CE, (as amended by Notification No. 04/2014-CE, dated 17.02.2014); and Notification No. 12/2015-CE, dated 01.03.2015 - 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:-

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 18.06.2001, 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 vs. Commissioner of Central Excise, Bangalore, 2000 (38) RLT 588 (7), the importers of goods, were not claiming the benefit of concessional rate of CVD, as they did n