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2015 (11) TMI 884 - CESTAT AHMEDABAD

2015 (11) TMI 884 - CESTAT AHMEDABAD - TMI - Denial of refund claim - SEZ unit - claim of refund due to reduction of Basic Customs duty (BCD) from 5% to 2.5% vide Notification No. 54/2010-Cus. dated 29.04.2010 - whether the Customs Officer posted in the Special Economic Zone unit has the power to sanction refund of customs duty or not. - Held that:- issue is no more res-integra in view of the decision of the Hon'ble High Court of Gujarat. In the case of Anita Exports vs. UOI (2014 (12) TMI 361 - .....

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ion as per law - Decided in favour of assessee. - Appeal No. C/10267,10268/2013 - ORDER No. A/11387-11388/2015 - Dated:- 5-10-2015 - Mr. P.M. Saleem, Hon ble Member (Technical) For the Appellant : Shri S.R. Dixit, Advocate For the Respondent : Shri Lalatendu Patra, Authorised Representative ORDER Per Mr. P. M. Saleem These appeal are filed by the appellant against two separate order of the Commissioner (Appeals) on an identical issue. Therefore, both the appeals are taken up together for disposa .....

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led refund claim of ₹ 54,733.00, 4% SAD under Notification No. 104/2007-Cus dated 14.09.2007. Both refund claims were rejected by the Specified Officer of Customs, Surat Special Economic Zone, vide Orders-in-Original dated 19.08.2011 and 29.07.2011. 3. Heard both sides. Learned Counsel for the appellant argued vehemently that the Customs duty has been paid under the provisions of the Customs Act and therefore, the appellant is eligible for refunds due under the Customs Act. It is perverse .....

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y in such cases. He also relied upon the decision of the Hon'ble Gujarat High Court in the case of Anita Exports vs. UOI 2014-TIOL-2162-HC-AHM-CUS. 4. On the other hand, the learned Authorised Representative for the Revenue vehemently opposed the contentions of the learned Counsel. He submitted that there are no provisions to refund Customs duty by the proper officer of Customs in the SEZ Act. Hence, the proper officer has no jurisdiction and it would be illegal for him to sanction such refu .....

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t are reproduced below :- 1. Short question which cannot wait indefinitely arises in this group of petitions. Though facts are slightly different in each case, the central question is as to which authority would be competent to entertain and dispose of the refund claims of units situated within the Special Economic Zones which claims arise out of over payments of customs duty, redemption fine or penalties under the Customs Act, 1962. As the facts would emerge, the respondents have brought about .....

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issioner of Customs from processing refund claims which was his statutory duty. Secondly, if such mechanism was to be changed for SEZ units from the authorities of the Customs Commissionerate to Commissionerate (SEZ), there had to be matching provisions providing such mechanism under the SEZ law. This admittedly was not done. In fact, till date it has not been done. Thirdly, all the refund claims, appeals and reviews were to returned with an advise to approach the Ministry of Commerce. We may re .....

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statutory amendments. The powers can be shifted into another authority if a valid law is made in order to do so. By a mere letter, Ministry of Finance could not have suspended the power of Commissioner (Customs) to exercise his statutory functions. It is undisputed that duty was collected by the Commissioner of Customs. Whatever be the character of the duty, the Commissioner of Customs collected the same on a perceived opinion that unit concerned was required to pay such customs duty, redemptio .....

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y issues may arise which are not clear to us. But one thing is clear that such issues can be decided only by the authority under the Customs Act. 18. Under the circumstances, in our opinion, the directives issued by the Ministry of Finance in its letter dated 1-11-2012 are invalid and would have no force of law. It is declared that unless proper mechanism is framed under the SEZ laws and statutory provisions are enacted/amended, the Commissionerate of Customs would continue to hold the authority .....

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