Sony Pictures Networks India Pvt. Ltd. (formerly Multi Screen Media Pvt. Ltd., previously Set India Pvt. Ltd.) v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938** ## **WP(C).No. 10019 of 2016 (B)** **---------------------------------------------** ## **PETITIONER(S) : --------------------------** **SONY PICTURES NETWORKS INDIA PVT. LTD. (FORMERLY KNOWN AS MULTI SCREEN MEDIA PVT.LTD.,) (PREVIOUSLY KNOWN AS SET INDIA PVT.LTD.) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT INTERFACE, BUILDING NO.7, 4TH FLOOR, OFF MALAD LINK ROAD, MALAD (WEST), MUMBAI-400 064. REPRESENTED BY ITS AUTHORISED SIGNATORY, MS.DIPTI KOTAK, SENIOR VICE PRESIDENT (LEGAL).** **BY ADVS. SRI.SHAJI THOMAS, SRI.PRAKASH.D.SHAH SRI.BINU PAUL SRI.B.RAJESH (KOTTAYAM) SRI.PRASAD PARANJAPE** **RESPONDENT(S) : -----------------------------** **1. THE UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110 001.** **2. THE COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, T.C.NO.26/334, ICE BHAWAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM-695 001.** **3. THE ASSISTANT COMMISSIONER OF CUSTOMS, AIR CARGO COMPLEX, SHANGHUMGHOM, THIRUVANANTHAPURAM-695 008.** ## **BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 10019 of 2016 (B)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 : COPY OF THE TRUE PHOTOCOPIES OF THE CERTIFICATE DATED 21ST NOVEMBER 2007 ISSUED BY THE REGISTRAR OF COMPANIES.** - **P2 : COPY OF THE TRUE PHOTOCOPIES OF THE CERTIFICATE DATED 11TH DECEMBER 2015 ISSUED BY REGISTRAR OF COMPANIES.** - **P3 : COPY OF THE TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 1ST FEBRUARY 2016 ISSUED BY THE 3RD RESPONDENT.** - **P4 : COPY OF THE TRUE PHOTOCOPY PETITIONER'S LETTER DATED 7TH JANUARY 2002 ALONG WITH THE COPY OF THE CUSTOMS DUTY RECEIPT.** - **P5 : COPY OF THE TRUE PHOTOCOPY COPY OF THE ORDER IN APPEAL NO.3/2002-CUS DATED 25TH FEBRUARY 2002.** - **P6 : COPY OF THE TRUE PHOTOCOPY COPY OF THE ORDER DATED 18TH NOVEMBER 2002 OF THE APPELLATE TRIBUNAL.** - **P7 : COPY OF THE ORDER DATED 28-07-2015 PASSED BY THE HON'BLE SUPREME COURT OF INDIA.** - **P8 : COPY OF THE CIRCULAR F.NO.275/37/2K-CX.8A DATED 2ND JANUARY 2002.** - **P9 : COPY OF THE CIRCULAR NO. 802/35/2004-CX DATED 8TH DECEMBER 2004.** - **P10 : COPY OF THE PETITIONER'S LETTER DATED 01-10-2015 SUBMITTED BEFORE THE 3RD RESPONDENT ALONG WITH ITS ANNEXURES.** - **P11 : COPY OF THE LETTER DATED 28TH OCTOBER 2015 ISSUED BY THE 3RD RESPONDENT.** - **P12: COPY OF THE LETTER DATED 28TH DECEMBER 2015 ISSUED BY THE 3RD RESPONDENT.** - **P13 : COPY OF THE PETITIONER'S LETTER DATED 13TH JANUARY 2016.** - **P14 : COPY OF THE PETITIONER'S ADVOCATE'S LETTER DATED 18TH FEBRUARY 2016.** ## **WP(C).No. 10019 of 2016 (B)** **------------------------------------------** ## **P15 : COPY OF THE PETITIONER'S ADVOCATE'S LETTER DATED 24TH FEBRUARY 2016.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **A.M. SHAFFIQUE, J.** ## =============== W.P. (C) No. 10019 of 2016 ================== Dated this, the 29[th] day of July, 2016 ## **J U D G M E N T** This writ petition is filed challenging Ext.P3 and for a direction to the 3[rd] respondent to forthwith sanction and grant refund of `1,15,15,214/- made by the petitioner with interest from the date of order passed by the Appellate Tribunal, i.e., 18/11/2002. 2. The facts involved in the writ petition would disclose that the petitioner had deposited the aforesaid amount being the differential import duty as per classification 8528 and 8525.20 under protest. It was indicated in Ext.P4 that the payment is made under protest being the differential duty payable. The petitioner had also preferred an appeal against the order dated 22/5/2001 which was pending before the Commissioner of Central Excise and Customs (Appeals), Cochin The appeal was decided against the petitioner. Petitioner preferred an appeal before the Customs, Excise and Service Tax Appellate Tribunal as Appeal No.C/492/2002. The Tribunal allowed the appeal holding that the W.P(C) No.10019/16 ## -:2:- goods imported by the petitioner are correctly classified under heading 8525.20 of the Customs Tariff. Tribunal's decision was challenged by the respondent before the Supreme Court as Civil Appeal No.5484/2003, which was dismissed as per order dated 28/7/2015. While dismissing the Civil Appeal, Supreme Court by its order dated 28/7/2015 directed that the excise duty paid by the respondent (petitioner herein), if any, shall be refunded in accordance with law. According to the petitioner, though there is no necessity to submit a separate application seeking refund of the amount, still, he filed an application seeking for refund with interest. However, without processing the said application, petitioner was served with a show cause notice as Ext.P3. In the show cause notice, the petitioner was called upon to produce various documents and it was indicated that the documents were required for verifying the unjust enrichment part and for processing the refund claimed. Petitioner made available the copies of the documents and informed that most of the original documents are not available in their file as they were lost during a flood. However, it was mentioned that it was the obligation of the department to refund the amount even without a formal W.P(C) No.10019/16 -:3:- application. Since, nothing was done in the matter during the interregnum, this writ petition is filed seeking the aforesaid reliefs. 3. Counter affidavit has been filed on behalf of the respondents _inter alia_ stating that when the Supreme court had directed that the excess duty paid has to be refunded in accordance with law, in order to comply with the said direction, show cause notice had been issued. There was no reason for the petitioner to have approached this Court and the 3[rd] respondent would have passed appropriate orders within a reasonable time. However, on account of the pendency of the above writ petition, no order has been passed in the matter. 4. The main contention urged by the petitioner is that the amount deposited was a pre-deposit in terms of Section 129E of the Customs Act and in terms of Section 129EE, there is an obligation on the part of the department to refund the pre-deposit if the case is decided in favour of the petitioner. It is submitted that there is non compliance of the said statutory provisions. Further, learned counsel for the petitioner also places reliance on the judgment of the Bombay High Court in _**Suvidhe Ltd. v.**_ W.P(C) No.10019/16 ## -:4:- _**Union of India**_ [1996 (82) E.L.T.177] wherein Bombay High Court after referring to the various circulars issued by the Board observed that with reference to the Central Excises and Salt Act, 1944, the amount deposited under Section 35F has to be refunded when the appeal is allowed with consequential reliefs and the doctrine of unjust enrichment has no application to such deposit. The said judgment had been approved by the Apex Court in _**U.O.I. v. Suvidhe Ltd.**_ [1997 (94) E.L.T. A 159 (S.C)]. Reference is also made to the judgment of this Court in _**Commissioner of Customs, Kochi v. Shree Simandar Enterprises**_ [2012 (285) E.L.T. 328] wherein also this Court having considered the claim for refund of the penalty and fine directed the amount to be refunded with 6% interest. 5. Be that as it may, it is not in dispute that the amount had been deposited by the petitioner under protest when the appeal was pending and when the Tribunal passed the order allowing the appeal filed by the petitioner, there is an obligation cast on the department to refund the amount. Learned Single Judge of this Court in _**Commissioner of Customs, Cochin v. Shree Simandar Enterprises**_ [2012 (283) E.L.T.369 (Ker.)] had ## W.P(C) No.10019/16 ## -:5:- ## considered the scope and effect of Sections 129E and 129EE and it was held at paras 6 and 8 as under:- _“6. I have considered the rival contentions in detail. I am of the opinion that the stand of the petitioner in the review petition is totally hyper-technical and unreasonable. When an appellate authority allows an appeal filed against imposition of tax, duty, fine, penalty etc., it is the bounden duty of the assessing authority, as part of a democratic government, to refund the amounts covered by orders of the appellate authority, when appeals are allowed fully or partially. The same shall be refunded even without a formal request for the same. Certainly, on a request made for refund, the same shall be refunded immediately, failing which the assessing authority is bound to pay interest on the amount from the date when the refund became due. This position has been formally accepted by the Government of India also based on the decisions of the High Courts and the Supreme Court as is evident from Exts.P3 and P7. When by Ext.P3 and P7, the Government of India themselves have reminded all the officers under them of the necessity to make refunds consequent on appellate orders expeditiously, the petitioner in the review petition cannot act as a super government, insisting on documents, production of which is not mandated by any rule, order or circular.”_ -:6:- ## W.P(C) No.10019/16 _“8. Apart from the same, as I have already held, it is the cardinal duty of assessing officers to implement appellate orders by refunding amounts already paid in accordance with the adjudication order, even without a request for the same, since the government cannot act like private parties in the matter of payment of money due, when money is due to citizens from the government. It is the duty of all government officers also to see that the image of the government before the citizens is clean and in accordance with basic principles of fair play. Even otherwise, occasionally, in appropriate cases the officers of the government can be magnanimous also to improve the image of the government before the public.”_ That apart, the circular issued by the Board and relied upon by the learned counsel for the petitioner, Circular No.275/37/2KCX.8A dated 2/1/2002, clearly indicates that the amount received under Section 35F has to be given as refund even without a formal application. The provisions under Section 129E is in pari materia with the provision under Section 35F. 6. Having regard to the overall factual and legal issues involved in the matter, there cannot be any dispute that the petitioner is entitled for refund of the aforesaid amount. The question of unlawful enrichment does not arise in the case at all. W.P(C) No.10019/16 ## -:7:- This is a case in which amount had been deposited under protest during the pendency of the appeal and the petitioner is entitled to refund. In the said circumstances, this writ petition is allowed as under:- (i) Ext.P3 is set aside. (ii) There will be a direction to the 3[rd] respondent to pay the entire amount due to the petitioner as refund with applicable interest within a period of one month from the date of receipt of a copy of this judgment. (iii) If at all any documents are required, it will suffice that the petitioner gives an indemnity bond for one year agreeing and undertaking to make good the loss, if at all there is any claim from any other party within the said period. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Rp30/07/2016 //True Copy// P.S to Judge