TMI Blog2013 (8) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... after 18.7.2006 till 13.7.2007 – assessee was entitled to interest on the refund from interest u/s 18(4) – but before 13.7.2006 was time barred - suo motu refund was a grant of section 18(2) whereas claim of refund was envisaged by section 27 – an assessee assumes right to refund u/s18(2) - section 27 determines a right to refund upon claim – court followed Commissioner of Customs Vs. Indian Oil Corporation (2012 (1) TMI 31 - DELHI HIGH COURT) – sub-sections (3), (4) and (5) introduced to section 18 of Customs Act, 1962 have no retrospective effect - Thus right to interest under Section 18(4) of Customs Act, 1962 before 13.7.2006 is accordingly barred. However delay in granting refund having been made even after 18.7.2006 till 13.7.2007, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me due and thus provision for payment of interest under Section 27A did not arise in absence of provision of law with regard to payment of interest. 3. Against rejection of claim of interest on the refund arising out of finalisation of provisional assessment when the appellant came in appeal before ld. Commissioner (Appeal), ld. appellate Authority by order dated 04.08.2008 rejected the appeal on the ground that refund did not arise under provisions of Section 27 of Custom Act, 1962 because explanation-II appearing under Section 27 prescribed limitation for filing refund application and a refund arising on finalisation of provisional assessment under section 18(2)(a) of Customs Act, 1962 shall not be a refund ipso facto under Section 27 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (iv) The appellant is governed by the decision of Apex Court in the case of CCE, Hyderabad Vs. I.T.C. Ltd. 2005(179) ELT 15 (S.C) holding that pre-deposit when refundable that shall be with interest. (v) That claim of interest on refund arising out of finalisation of provisional assessment is not deniable following the ratio laid down by Hon ble High Court of Andhra Pradesh in the case of Commissioner of Customs Central Excise., Hyderabad-III Vs. Ampro Industries Pvt. Ltd 2012 (278) ELT 306 (A.P.) holding that interest is due after 3 months of filing of refund application. 6. On the other hand Revenue repelled the arguments of appellant on following grounds. (i) That provisional assessment completed under Section 18(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of interest, that was denied. While Appellant says that refund arose under section 18 is governed by Section 27 of the Act, Revenue denies such averment on the ground that Section 18 (2) of Customs Act, 1962 entitles to refund if any arises out of finalisation of provisional assessment automatically whereas refund under Section 27 is a claim without a suo motu grant. Reading of the provisions of both the sections make clear that suo motu refund is a grant of section 18(2) whereas claim of refund is envisaged by section 27 of Customs Act, 1962. While an assessee assumes right to refund under section 18(2), section 27 determines a right to refund upon claim. Therefore nature of refund in both cases differs. Application for refund arises u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and claiming of a refund; the amendment cannot be considered to be retrospective in nature; and cannot be made applicable to pending proceedings. 19. This can be considered from a slightly different angle. While introducing the Taxation Laws (Amendment) Bill, 2005 (Bill No. 74 of 2005) the Notes on Clauses in relation to Section 18 of the Act indicate that sub-sections (3), (4) and (5) to Section 18 of the Act, have been inserted to provide for a mechanism to regularise the payments of duty short levied and interest thereon and duties that are to be refunded on finalization of provisional assessment and in this context in the report of the Standing Committee on Finance it has specifically been noted that this amendment became necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Court can only read the provisions and the statute as they stand, and if necessary, interpret the same but the Court cannot legislate. This is a salutary principle of interpretation. Furthermore, as noticed hereinbefore, the Apex Court has in no uncertain terms drawn the distinction between making of refund and claiming of refund. The High Court cannot equate the two in light of the authoritative pronouncement of law by the Apex Court. 8.4. When appellant was entitled to refund under section 18(2) of Customs Act, 1962, consequent upon finalisation of provisional assessment, and that was denied, the matter proceeded upto Apex Court and the dispute was settled on 27.4.2006. Refund related to the period prior to 13.7.2006 was accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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