Javick Implex (P) Limited, Plot No. 26, Road No. 1 vs. The Commercial Tax Officer, Basheerbagh

However, the petitioner could not produce copy ol customs clearance cerlificate menrioned in Rule 35(6)(a)(ii) of the ApVAT Rules as there \\'as no such certillcate being issued under the provisior-rs ol'the ('ustouts Act. [lules or Notif-ications isstrecl therer.rnder. \r.

The l't respondent denied to the petitioner refund of VAT of Rs.4,71,347/- vide order d1.05.12.2005 oniy on the ground that the petitioner failed to produce documentary evidence prescribed under Rule 35(6XaXii) of the APVAT Rules, i.e., copy of customs clearance certificate.

Challenging the same, the petitioner preferred an Appeal to the Appellate Deputy Commissioner (CT), Punjagutta Division, Hyderabad' TheAppellateAuthorityacceptedthecontentionofthepetitioner that there is other documentary evidence which can be taken into consideration; and held that when there is no scope to produce customs clearance certificate at all, and the same is not being issued under statutes relating to the Customs Act, it would be absurd for the Assessing Authority to cornpel the petitionel' to produce custollls clearance certificate (which is not being issued and cannot be issued by Customs Authorities); and the Assessing Authority can examine other evidence' such as purchase orders placed by the foreign buyer' evidence about realization of the consideration paid in tenns of foreign culrency' banker's certificate, etc., as altemative evidence including label or declaration accompanying the goods as contemplated under Section 82 of I I F-

The saicl Appeal was allowed on 18.04 2006 acceptirrg the petitioner's contention that its claim tbr retund ought to have been allowed by examination of other relevant documentary evidence' such as shipping bilt, postal receipt/declaration, as the case may be, since the customs clearance certificate was not being issued for postal exports'

We find considerable force in the said submissions'

The Special Govemment Pleader appearing for the respondents does not dispute the binding nature of proceedings dt'05'06 2007 issued by the Commissioner of Custorns and Central Excise' I'lyderabad-ll Conrmissiorrerate tlc is unable to explain rvhy in the irrlptrgrrccl older' thc l"respondenthadagainchosentorejectthepetitioner'sapplicationlor refund on 21.08'2006 on the pretext that customs clearance cer1ificate was not produced by the petitioner'

Admittedly, under Section 38(l) of the APVAT Act' 2005' refund due to an exporter has to be made within 90 days from the date of VAT retum, and so the l" respondent who is presumed to be aware of the said provision, could not have rejected the refund due to the petitioner'

More importantly, on 28'04'2006' after remand by the Appellate Deputy Commissioner on 18'04'2006' it is the l'r respondent who had issuedadvicetothepetitionerreferringtothepetitioner'sapplicationfor refund of Rs'4 ,71,3471-stating that the said refund claim was accepted'

We also fail to understand horv in the irnpugnecl ordcr the l" respondentcouldsimrrltaneously(i)r.c]ecttheclailnol.thcl.rctitionerfor relund and (ii) contradict hirnself by advising thc petitiotrer to clainr refund after March' 2007' I t- 'l

There is no denial in the counter-affidavit of the petitioner's contention that claims for refund to the tune of Rs.400.00 Crores were made in the financial years 2005-06 and 2006-07 withotrt insisting on customs clearance certiflcate by merely accepting invoice, airway bills, declaration. LC copies, etc., by the Commercial Tax Department. This indicates that only, thc'petitioner's clairn tbr rel'und is being objected to in a cliscrinrinrtolv Ilshiorr rvithout any' legal basis 16, ln the counter-aflldavit. a nerv plea is laised that the recluirelnent ol producing customs clearance cerlitlcate was omitted u,hen Rule 35(6) of the APVAT Rules was amended with etfbct tiorn I5.6.2007 w.e.f 1.1.2005, and so it was necessary lbr the petitioner to produce proof of exports 'certified' by the Customs Depallment.

How the petitioner can be asked to comply with this new requirement which was introduced after his request for refund was accepted by tlie Appellate Deputy Commissioner on I8.04.2006 much prior to the arnendment, is not explained in the countcr-atfidavit. The responclents cannot sustain the inlpugned order dt.21.8.2006 refusing lefund to thc petitioner on basis ol nerv pleas not contained in the said order. ancl on !-\'ents s hich happened after the said order rvas passed 18. lt is not irr disputc tliat the petitioner's application fbr refund enclosed the documents ref'erred to above in the 2"d paragraph except the customs clearance certificate which was not being issued by the Customs Authority.

The petitioner had also admittedly produced label r custonrs declaratiorr furnished to the postal authorities to evidence export proper as the goods were exported by post by it. The petitionel' had also produced the certificate issued by the Postal Depaltment of Government of India confirming and corroborating delivery of postal consignments to the consignees outside the country with relevant details, such as place of destination, date of delivery, etc. It had also produced other documents referred to in Rule 35(6) other than the customs clearance certit'icate.

In this view of the mater, we are of the considered opinion that the action of the l't respondent in denying refund to the petitione[ is violative olAnicle l4 of the Constitution ollndia, perverse and in contentpt of the ordcr dt.18.04.2006 ol the Appellate Deptrty conrnlissionet' (cT), Pr.rniagutta Division. Ilyderabad. 2|. Accordingly, the Writ Petition is allowed and; the action of the lsl respondent in rejecting the petitioner's clairn for refund vide communication dt.21.08.2006 is declared as arbitrary, illegal and without juri iction; and the ltt respondent is directed to refund the sum of Rs.6,38,7241- (Res.4,77,3471- and Rs.1,67,3771') by crediting the above said amount to the petitioner's bank account, within fifteen (15) days from the date of receipt of a copy of this order, along with interest due thereonattherateoflToperlnonth,asprovidedurlderscction39ofthe Act. tl.onr the date on which the Fortlr \,A,I.]0() s'as tiled by.the petitioner till the date of credit of the said arrount'

The l't respondent shall also pay costs of Rs.25,000/_ to the petitioner within four (04) weeks.

Pending rniscellaneous petitions, if any, in this Writ petition shall stand c losed. That Rule Nisi has been made absolute as above. MEMORANDUM OF COSTS W.P. No.1 5035of 2007 Rs. Ps. Witness the Hon'bte the Chief Justice HIMA KOHLI, on this Thur ay, the Fifteenth day of July, Two Thousand and Twenty One. Eq:i^"r",8'lii'.fl .,&:,5,"?:1"-"::,TJ'H:,'iil; (Rupees Twenty Five thousand' o"rvj"to"irr". ,."ii["", within four (04) weeks. TOTAL 25,000 - 00 Rs 25,000- 00 To, ,' '.T.KRISHNA KUMAR ASSISTANT REGISTRAR secrroJbirrcen