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WP(C) 5120/2011

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Judgment reserved on :

29^th July, 2013

Judgment pronounced on: 13^th September, 2013

+

W.P.(C) 5120/2011

PIONEER INDIA ELECTRONICS (P) LTD. ..... Petitioner

Through

Mr. Sukumar Pattjoshi,

Senior Advocate with

Mr.S.K.Dubey, Mr.Zeeshan

Khan and Ms.Anuradha

Salhotra, Advocates

versus

UNION OF INDIA & ANR.

..... Respondents

Through

Ms.Sonia Sharma, Adv for

Union of India.

Mr.Anshuman Chowdhury,

Advocate for R-2

CORAM:

HON’BLE MR. JUSTICE SANJIV KHANNA

HON’BLE MR. JUSTICE SANJEEV SACHDEVA

SANJEEV SACHDEVA, J.

1. The petitioner has filed the present petition impugning

the Circular No.23/2010-Customs dated 29.7.2010 and

the notification No. 93/2008-Customs dated 1.8.2008.

The petitioner further prays for setting aside of the

orders dated 21.3.2011 and 27.4.2011 passed by the

Commissioner of Customs (Appeals) relying on the

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WP(C) 5120/2011

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impugned

Circular

No.

23/2010-Customs

dated

29.7.2010 and further sought a writ of mandamus

seeking refund of the provisional duty paid amounting

to Rs. 94,43,216/-.

2. The petitioner M/s Pioneer India Electronics Private

Limited was incorporated in the year 2008 and is

subsidiary of Pioneer Corporation, Japan. The

petitioner is engaged in the import and marketing of

Pioneer branded products in India.

3. The petitioner imported several electrical goods falling

under the first schedule of the Customs Tariff Act,

1975 (hereinafter referred to as, the Act). The goods

were cleared after payment of provisional duty.

4. As it was a case of a related party transaction,

Customs Authorities referred the case to the Special

Valuation Branch of the Customs for the purposes of

valuation and clearance. Pending valuation by the

Special Valuation Branch, all bills of Entry were

cleared by the Customs Authorities provisionally under

Section 18 of the Act. After valuation by the Special

Valuation Branch of the Customs, the liability was

determined and the importer i.e. the petitioner then

applied for finalisation of the Bill of Entry. On the

finalisation of the Bill of Entry, the final duty was

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assessed and the provisional duty paid was adjusted

towards the final assessment. The said procedure is

followed in related party transactions. In case, any

additional duty is payable on final adjudication, the

importer is liable to pay the same and where the

provisional duty is more than the final duty assessed

the importer is entitled to the refund of the same.

5. On 14.09.2007 notification No. 102/2007-Customs was

issued by the Ministry of Finance, Government of India

in exercise of powers conferred by Sub-section 1 of

Section 25 of the Act. Vide the said notification, the

Central Government exempted the goods falling within

the first schedule to the Customs Tariff Act, 1975

when imported into India for subsequent sale from the

whole of the additional duty of Customs leviable

thereon under Sub-section 5 of Section 3 of the said

Customs Tariff Act. The exemption contained in the

notification was subject to the fulfilment of the

following conditions:

―(a) the importer of the said goods shall pay

all duties, including the said additional duty

of customs leviable thereon, as applicable,

at the time of importation of the goods;

(b) the importer, while issuing the invoice

for sale of the said goods, shall s