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2013 (6) TMI 417 - HC - CustomsRefund - Levy of Cess on import of coking and non-coking coal - levy of additional duty at the rate of Rs. 3.50 per metric tonne or Rs. 10/- per metric tonne - legal validity - held that:- insofar as the collection of so called additional duty is concerned, the same was wholly illegal. With respect to this aspect even the department is unable to raise any contention. This is so because in an identical situation, the Apex Court in the case of Central Excise & Customs, Bhubaneswar-I v. Tata Iron & Steel Co. Ltd. (2003 (4) TMI 104 - SUPREME COURT OF INDIA) held that such additional duty on imported coal could not be levied. The Apex Court noted that Section 6 of the Coal Mines Act pertains to collection of additional duty on excise. Section 7, on the other hand, pertains to collection of additional duty as Customs duty. The Apex Court noted that in absence of any notification under Section 7 of the Coal Mines Act, no such duty could be levied on import of coal made by the importers. The entire collection of additional duty in the name of Customs duty was wholly unauthorized. Refund - period of limitation - held that:- The contention of the petitioners that, therefore, in view of Section 17(1)(c) of the Limitation Act, 1963, such refund claim made within three years from the detection of the mistake should be entertained, must be rejected. It is a case where the duty was collected without any authority of law. Such collection of duty is not illegal or unlawful or irregularly collected Customs duty under the Customs Act, but a duty collected without authority of law and therefore opposed to Article 265 of the Constitution of India and is thus unconstitutional. In that view of the matter, the petitioners cannot be bound by the limitation prescribed in the Customs Act, 1962 for claiming refund of excess duty or duty collected illegally. The period of limitation prescribed under the Limitation Act would apply. Unjust enrichment - held that:- The Apex Court in the case of Mafatlal Industries & Ors. v. Union of India & Ors. (1996 (12) TMI 50 - SUPREME COURT OF INDIA) having taken note of such decisions, has held that in every case of refund of duty even if the same is on the ground of the provisions under which such duty was collected having been declared unconstitutional, the duty would be on the person, claiming refund, to establish that the incidence of such duty was not passed on to any other person. The petitioners shall be entitled to refund of such duty paid only within three years immediately preceding the date of filing of the petition, which happens to be 18-8-2006. Such refund shall be granted to the petitioners with simple interest at the rate of 9% per annum from the date of payment till actual refund, however, only after ascertaining that the burden of such duty was not passed on to consumer or any other person. - partly decided in favor of assessee.
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