HLG Trading Vs Commissioner of Customs (Madras High Court)
Summary: The Madras High Court permitted HLG Trading to withdraw from the writ remedy and challenge the customs speaking order before the Commissioner of Customs (Appeals), since an effective statutory appellate remedy was available. The petitioner had sought quashing of Speaking Order No. 83925/2021 dated 15 April 2021 and a direction to reassess the relevant bills of entry by extending the benefit of Notification No. 30/2004-CE dated 9 July 2004, as amended, against the levy of countervailing duty. During the hearing, however, the petitioner confined its request to permission to pursue the statutory appeal and exclusion of the period for which the writ petition remained pending before the High Court. Considering this limited request, the Court permitted the petitioner to file an appeal before the Commissioner of Customs (Appeals). It further directed that the period during which the writ petition remained pending would stand excluded while computing limitation for filing the appeal. The High Court did not examine the petitioner’s substantive entitlement to the exemption notification, reassessment or consequential refund and expressly refrained from expressing any opinion on the merits. The writ petition was accordingly disposed of without costs, and the connected miscellaneous petition was closed.
Facts of the Case
HLG Trading challenged Speaking Order No. 83925/2021 dated 15 April 2021 passed by the second respondent. The petitioner sought reassessment of the relevant bills of entry by claiming the benefit of [Notification No. 30/2004-CE dated 9 July 2004](https://taxguru.in/excise-duty/notification-no-30-2004-ce-dated-09-07-2004-conditional-notification.html), as amended, against the levy of countervailing duty. It also sought quantification of the resulting amount to enable it to claim a refund.
Issue Before the High Court
The immediate issue was whether the petitioner should be permitted to pursue the effective statutory appellate remedy available before the Commissioner of Customs (Appeals) and whether the time spent prosecuting the writ petition should be excluded while computing the limitation period for filing that appeal.
Petitioner’s Submission
The petitioner submitted that an effective appeal remedy was available before the Commissioner of Customs (Appeals). It therefore requested the High Court not to examine the merits of the customs dispute and instead grant liberty to pursue the statutory appeal.
The petitioner further requested exclusion of the period during which the writ petition remained pending before the High Court for computing the limitation applicable to the customs appeal.
Madras High Court’s Decision
The High Court accepted the petitioner’s limited request and permitted it to file an appeal before the Commissioner of Customs (Appeals). An appeal against an appealable customs decision or order is governed by [Section 128 of the Customs Act, 1962](https://taxguru.in/custom-duty/section-1281-customs-act-allows-appeals-communication-denying-dfia-exemption.html).
The Court directed that the period during which the writ petition remained pending before it should be excluded when calculating limitation for the appeal.
The High Court expressly refrained from expressing any opinion on the merits of the petitioner’s claim concerning the countervailing-duty exemption, reassessment of the bills of entry or consequential refund.
Conclusion
The writ petition was disposed of by relegating HLG Trading to the statutory appellate remedy. The petitioner received protection against limitation through exclusion of the period spent pursuing the writ proceedings. The underlying customs exemption dispute was left open for determination by the Commissioner of Customs (Appeals). No costs were awarded, and the connected miscellaneous petition was closed.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
The petitioner has filed this writ petition seeking issuance of Writ of Certiorarified Mandamus, calling for the records in and connected with Speaking Order No.83925/2021 dated 15.04.2021 made in F. No. CUS/APR/BE/MISC/764/2020/GR-3 of the second respondent, quash the same and direct the second respondent to extend the benefit of [Notification No.30/2004-CE dated 09.07.2004](https://taxguru.in/excise-duty/notification-no-30-2004-ce-dated-09-07-2004-conditional-notification.html) as amended with respect to importations made by the petitioner under 12 2/4 bills of entry from levy of countervailing duty by reassessing the said bills of entry, quantifying the same for the purpose of entitling the petitioner to seek refund of the same.
2. The learned counsel appearing for the petitioner submitted that as against the impugned order, there is effective appeal remedy available to the petitioner before the Commissioner of Customs [Appeals]. Hence, this Court, without going into the merits of the case, may grant liberty to the petitioner to exhaust the appeal remedy. The learned counsel further submitted that the period during which the writ petition was pending before this Court may be excluded for the purpose of limitation.
3. Considering the limited request now made by the learned counsel appearing for the petitioner, this Court, without expressing any opinion on the merits of the case, permits the petitioner to file appeal before the Commissioner of Customs [Appeals]. The period during which the writ petition was pending before this Court is excluded for the purpose of limitation.
4. The writ petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
