Elite Green Pvt Ltd Vs Under Secretary (Customs-III/VI)/Government of India (Kerala High Court)
Introduction: The case of Elite Green Pvt Ltd vs Under Secretary (Kerala High Court) involves a writ petition for a refund claim of 4% Special Additional Duty (SAD) on imported goods for the years 2014 and 2015. The petitioner contends that the lack of public notice regarding the change in payment procedures led to a denial of their refund.
Analysis:
1. Petitioner’s Claim: Elite Green claims that they were unaware of a circular that necessitated paying 4% SAD in cash, rather than in scrips, for a refund to be processed. They argue that the lack of public notice regarding this circular led them to pay in scrips, thus disqualifying them from the refund.
2. Respondents’ Argument: The respondents argue that the circular was published on the DGFT’s official website, constituting sufficient public notice. They assert that the petitioner’s failure to pay in cash as stipulated by the circular makes them ineligible for the refund.
3. Court’s Ruling: The court sided with the respondents, finding that publishing the circular on the official website amounted to public notice. The petitioner’s failure to pay the 4% SAD in cash, as mandated, made them ineligible for the refund.
Conclusion: The Kerala High Court’s decision in this case underscores the importance of monitoring official channels for regulatory changes that may impact businesses. The ruling sets a precedent that publishing notifications on an official government website is deemed to be public notice, reinforcing the importance for businesses to keep abreast of rules and regulations via official online channels. The dismissal of Elite Green’s petition reflects a strict interpretation of compliance in legal and regulatory matters, emphasizing the responsibility of businesses to adapt to rule changes, even if communicated digitally.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
Heard Mr Baby M A, learned counsel for the petitioner, Ms. S Krishna, Central Government Counsel for respondents 1 and 2 and Ms. Preetha S Nair learned counsel for respondents 3 and 4.
2. The present writ petition under Article 226 of the Constitution of India has been filed for a writ of mandamus directing the respondents to sanction the refund claim of 4% of Special Additional Duty (for short, ‘SAD’) against the goods imported under several Bills of Entries in the year 2014 and 2015 as mentioned in the writ petition.
3. The petitioner claims to be a leading food processing unit in India and exports processed food. The petitioner procures raw materials locally to process the food items for export. Some raw materials are also imported to meet export obligations.
3.1 The Director General of Foreign Trade (for short, ‘DGFT’) of the Government of India has issued notification No.102/2007-Cus dated 14.09.2007, whereby 4% duty collected as an additional duty while importing goods and such amount collected from the importers were to be returned to the importer subject to production of evidence regarding payment of sales tax to customs authorities. The DGFT of the Government of India has come out with another Circular No.18/2013-Cus dated 29.04.2013 regarding the refund of 4% SAD. The said notification provides that for refund of 4% of SAD, the importer should make an initial payment of 4% SAD in cash instead of scrips. A decision was also taken that no recrediting should be done if such payment was made using scrips. In other words, in future, exporters should pay the SAD component in cash if they would like refund of 4% of SAD.
3.2 Learned Counsel for the petitioner submits that despite issuing the said notification, the petitioner paid the 4% SAD in scrips as the petitioner was unaware of the said notification. He further submits that public notice should have been given regarding this notification/Circular No.18/2013-Cus dated 29.04.2013 by the Cochin Port. It is, therefore, submitted that as per the mandate of the said Circular, public notice and Standing Order were required to be issued for the guidelines of the trade and the staff, which was not done, and that resulted in the petitioner not paying the SAD n cash but in scrips and which was accepted by the Customs Authorities.
3.3 The petitioner’s claim for refund of SAD @ 4% has not been processed on the ground that the petitioner did not pay SAD @ 4% in cash in terms of Circular No.18/2013-Cus dated 29.04.2013 . Learned Counsel for the petitioner submits that when the customs authorities themselves were not aware of the notification, the petitioner could not have been expected to be aware of the said notification in the absence of public notice of the said notification. He, therefore, submits that this Court may direct the respondents to process the petitioner’s claim for refund of 4% SAD on the Bills of Entries as mentioned in the writ petition for the year 2014 and 2015.
4. On the other hand, the learned Counsel appearing for respondents 1 and 2 submits that the said Circular was published on the official website of the DGFT. Once a Circular or notification is published on the website of the Department or the DGFT, it is sufficient public notice. The petitioner cannot say that there was no public notice of the Circular once it was published on the official website of the DGFT. 5. Learned Counsel appearing for respondents 3 and 4 also supports the contention of learned Counsel for respondents 1 and 2 and states that the notification was published on the official website of the DGFT, and the publication of the notification on the official website is sufficient public notice. Therefore, the petitioner cannot claim that no public notice was given regarding the said circular/notification.
6. Learned Counsel for respondents 3 and 4 further submits that when the Circular itself provides that if any exporter claims refund of 4% SAD, the amount should have been paid in cash. Admittedly, the petitioner did not pay the said amount in cash but in scrips. Therefore, under the provisions of the said Circular, he was not entitled to the refund of 4% SAD on the Bills of Entries in the year 2014-2015.
7. I find substance in the submissions of the learned Counsel for the respondents. Admittedly, when the petitioner has not paid the 4% SAD in cash but in scrips despite Circular No.18/2013-Cus dated 29.04.2013, he was not entitled to refund of 4% of SAD. I do not find substance in the submission of the learned Counsel for the petitioner that the public notice was not issued regarding Circular No.18/2013-Cus dated 29.04.2013 . If the said Circular was published on the official website of the DGFT, it amounts that the public notice was given about the Circular.
8. In view thereof, I find no merit and substance in the present writ petition, which is hereby dismissed. Interim order, if any, stands vacated.
