NIKHIL KUMAR Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) this application the writ petitioner has asked for refund of a sum of Rs. 2,05,178/- being the amount of special additional duty under the provision of decision 3A(5) of the Customs Tariff Act, 1975.

(2.) The short fact of the case is as follows : The petitioners in between April 2003 and May 2003 imported four consignments of PU leather from Republic of China (formerly Taiwan). Under the provision of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (hereinafter referred to as the said Act) the said goods are chargeable to additional duty. However, rate of duty levied is nil as such the said additional duty is not realizable, as unconditional exemption has been granted in respect of these goods. Ordinarily special additional duty equal to sales tax is charged on import of certain goods under Section 3(A) of the Customs Tariff Act. However, Sub-section 5 of Section 3A of the said Tariff Act excludes all the goods which is chargeable to duty under the said Act. The said leather goods though no duty is realized, is nonetheless chargeable to duty. Therefore, the said goods should be excluded under the provisions of Sub-section 5 of Section 3A of the Tariff Act. Consequently duty already paid is liable to be refunded. The respondent on the strength of the aforesaid impugned notice being No. 35/2002-Customs, dated 27th June, 2002, has sought to levy and in fact had levied Special Additional Duty under Section 3A of the Tariff Act at the rate equal to Sales Tax on the said goods, holding the benefit under Sub-section 5 of Section 3A of the said Act is not available to nil rate of duty. After payment as aforesaid the petitioners made representations, contending that the aforesaid Special Additional Duty is not payable, it enjoys exemption. According to the petitioners chargeability has nothing to do with the levy and/or collection. The levy of 'nil rate' is also one of the chargeable events.

(3.) On 16th of July 2003, when the petitioners submitted bill of entries in respect of fresh import of the aforesaid goods, the petitioners refused to pay the same on the plea that the charging and levy of Special Additional Duty is wholly illegal and contrary to the provision of Section 3A of the said Act. However, the Commissioner of Customs has refused to release the goods without the payment being made.