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TMI Blog2016 (1) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs, Surat has returned the refund application on the ground that he does not have authority to process the same. 2. Brief facts are as under:- 2.1 Petitioner is a unit situated in Dahej Special Economic Zone and is engaged in manufacture of stone wool insulation products. According to the petitioner, the respondents collected a sum of Rs. 18,66,985/- by way of countervailing duty, though it was not payable by the petitioner. The petitioner, therefore, made a refund claim before the concerned customs authority having jurisdiction over the unit. 2.2 The issue regarding who would be the correct authority to process refund claims with respect to units situated in SEZs has been brewing up since quite some time. The respondents authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he SEZ law to ensure disposal of cases related to this issue. Under the circumstances, pending refund applications had to be returned to the applicants with a advise to approach the Department of Commerce. It was further conveyed that if any appeal was pending, same may also be returned for approaching the Department of Commerce. 14. Two things immediately emerge from this letter. Firstly, that the Ministry of Finance also recognised that there was no mechanism under the SEZ Act and Rules framed thereunder for entertaining refund applications and secondly, that the Ministry was of the opinion that such a set up was required to be made by making suitable changes in law. In fact the communication does not stop short at covering refund appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment) Act, 1991 or thereafter- by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226- and of this Court under Article 32 -cannot be circumscribed by the provisions of the said enactments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund 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 unit to DTA. Such duty was collected by Range - Dahej, Commissionerate - Surat-I (as per Copy of TR6 challan submitted). Further, the administrative control /revenue collection from your unit is with Central Excise & Customs, Bharuch Commissionerate. It is evident that Ahmedabad Customs Commissionerate does not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication. We do not see how such ratio becomes inapplicable in the present case. 4. Learned Counsel Shri Oza for the Department, however, sought to draw distinction by contending that in the present case, duty was assessed and collected by the SEZ authorities. To this aspect, learned Counsel Shri Trivedi for the petitioner joined issue contending that there has been no assessment and in any case, the duty has been collected by the customs authorities. 5. In our opinion, this distinction, even if exists, has no relevance. As long as the duty in the nature of customs duty has 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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