TMI Blog2016 (1) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... e is amendment in law, the respondents cannot prevent the competent officer from exercising his statutory powers, in fact, duties. 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. - SPECIAL CIVIL APPLICATION NO. 20321 of 2015 - - - Dated:- 20-1-2016 - MR. AKIL KURESHI AND MR. MOHINDER PAL, JJ. FOR THE PETITONER : MR KAMAL TRIVEDI, SENIOR ADVOCATE assisted by MR HARDIK P MODH, MR NARESH THAKER AND MR AMIT LADDHA, ADVOCATES FOR THE RESPONDENT : MR RJ OZA, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 recall this communication was issued by the Ministry of Finance. We wonder what Ministry of Commerce would do with such refund applications, appeals and reviews. There is no clarification whatsoever in this connection. The Ministry of Commerce per-se did not have any statutory power either to process the refund claims or entertain appeals or reviews. Appeals and reviews are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the prescribed time. Sub-section(2) of section 27 authorises the Assistant Commissioner of Customs or the Deputy Commissioner of Customs, if he is satisfied that whole or part of the duty or interest paid by the applicant is refundable, to make an order accordingly. Proviso to sub-section(2) statutorily embodies the principle of unjust enrichment. 17. In case of Mafatlal Industries Ltd. and ors. v. Union of India and ors. reported in (1997) 5 Supreme Court Cases 536, the Constitution Bench of Supreme Court considered the statutory provisions under the Customs Act, 1962 and the Central Excise Act and held that any claim for refund would be covered by section 27 of the Customs Act or 11-B of the Excise Act as the case may be. It was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 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 15.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your refund claim, therefore your refund claim application along with all the documents filed by you is returned herewith. 3. In our opinion, for multiple reasons, the approach of the Assistant Commissioner was incorrect. Firstly, in Anita Exports, there were bunch of petitions not having identical facts. It was only for convenience that we had referred to detailed facts in case of Anita Exports. Further, we do not see any material difference so far as the facts of Anita Exports and present case are concerned. The ratio of the decision was that for any customs duty collected, refund application would be maintainable under Section 27 of the Customs Act and such refund application would be maintainable before the specified authority of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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