TMI Blog2016 (1) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... DVOCATE FOR THE RESPONDENT : MR PRANAV G DESAI, ADVOCATE, MR RJ OZA, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged a communication dated 23.7.2015 as at AnnexureA to the petition under which Additional Commissioner, Customs, Surat returned the refund application of the petitioner on the ground that he has no authority to decide the same. 2. The petitioner is a SEZ unit and is engaged in manufacturing of pharmaceutical drugs. In the process of removal of its drugs, the petitioner had paid customs duty of ₹ 25,18,342/as applicable. However, owing to delay in supply of drugs, order was cancelled by the DTA buyer. On account of such development, the petitioner filed a request before the SEZ authority for cancellation of bill of entry as goods were not removed out of SEZ. Resultantly, according to the petitioner such custom duty of ₹ 25,18,342/became refundable. The petitioner therefore, filed refund application which came to be returned by the Additional Commissioner, Customs, Surat, on the ground of authority of jurisdiction. In the said order he conveyed as under : Please refer to your refund ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up before this Court, which group of matters came to be decided in case of Anita Exports Vs. Union of India, reported in 320 ELT, page No.743, in which it was held and observed as under: 13. From the above, it can be seen that on account of the said letter dated 1.11.2012 issued by the Ministry of Finance, a situation has arisen where neither the Commissioner of Customs nor the Commissioner of SEZ are left in a position to decide the refund claims of SEZ units or in some cases buyers of the goods. We would advert to the legal position shortly. However, we must observe that the Government cannot bring about a situation where no authority is left with the power to decide refund applications of the importers. This situation was brought about by the Ministry in its letter dated 1.11.2012. In the letter, as we have noted, while noticing that SEZ Act has overriding effect over other laws, it was also noticed that the SEZ officers were not accepting or disposing the refund applications due to lack of any provision in the SEZ laws for dealing with the same. The issue was therefore, taken up with the Department of Commerce for incorporation of provisions leading to refund as well as ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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, redemption fine or penalties as the case may be. If later on such duty, fine or penalty is declared illegal, the person from whom the same has been collected would have a right to seek refund thereof. Such right would be covered by statutory provisions particularly, section 27 contained in the Customs Act, 1962. Such refund application would have to be made within the time permitted under section 27 of the Customs Act, 1962. It may also be subject to verification on the question of unjust enrichment. Many 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. 16. Section 27 of the Customs Act, 1962 pertains to claim for refund of duty. Subsection( 1) thereof provides for an application to be made by person claiming duty or interest in prescribed form to the prescribed authority within the prescribed time. Subsecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the Commissionerate of Customs would continue to hold the authority under section 27 of the Customs Act, 1962 to entertain refund claims of excess payment of customs duty, redemption fine or penalties as the case may be, adjudicated and collected by the Customs authority under the Customs Act, 1962, even with respect to units situated in SEZ areas. Whatever refund claims being returned to the petitioners by the Customs Commissionerate, the petitioners would represent the same to the appropriate authority. If the petitioners do so latest by 15.12.2014, all such applications shall relate back to the first presentation before the Customs authority. The period of limitation for presenting such application and computation of interest in case eventually the refund is granted, shall be reckoned from such date. 2.3 Despite such legal position clarified by the High Court, once again the Assistant Commissioner of Customs, Surat refused to entertain the refund application of the petitioner. After recording facts in case of Anita Exports, he concluded as under: 6. In your case, the refund of Additional Duty of Custom (CVD) is related to CVD paid under protest on clearance from SEZ un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been collected, the refund would be payable only in terms of Section 27 of the Customs Act. Since the statute also prescribes the authority competent to entertain such an application, refund applications would be maintainable before such authority. Unless there is amendment in law, the respondents cannot prevent the competent officer from exercising his statutory powers, in fact, duties. 6. In the result, impugned communication dated 30.11.2015 is quashed. The refund application shall be decided by the competent officer under the Customs Commissionerate, Surat as expeditiously as possible and preferably before 30.04.2016. 7. We are informed that subsequent applications of the petitioner for similar refunds of CVD have not even been accepted by the Department. Without going into the correctness of this statement, if there are further refund applications presented by the petitioner under similar grounds, appropriate officer of the Department shall not return such applications without deciding. 8. The petition is disposed of accordingly. 4. Under the circumstances by adopting the same directions, the competent authority under the Customs Commissionerate, Surat, is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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