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2016 (1) TMI 959 - GUJARAT HIGH COURT

2016 (1) TMI 959 - GUJARAT HIGH COURT - 2016 (334) E.L.T. 412 (Guj.) - Jurisdiction to sanction Refund - Customs authorities or SEZ authorities - Refund of additional duty - SEZ unit - According to the petitioner, the respondents collected a sum of ₹ 18,66,985/- by way of countervailing duty, though it was not payable by the petitioner. - Held that:- 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 .....

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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. Petitioner is aggrieved by the respondents not deciding its refund application. In this context, the petitioner ha .....

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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 authorities are unable to decide such applications on account of certain intradepartmental communications. The situation had come to a stage where for prolonged period, n .....

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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 o .....

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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 cha .....

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missioner 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, redemption .....

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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. Sub-section(2) of section 27 authorises the Assistant Commissioner of Customs or the Deputy Commissioner .....

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m 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 observed as under: (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff whether before the commencement of the Central Excises and Customs Laws (Amendment) 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 .....

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ticle 32 -cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and no .....

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enalties 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 presentin .....

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nit 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 jurisdiction over your unit. The order of Hon'ble High Court in case of M/s.Anita Exports may be applicable to those Customs Commissionerates who are having administrative con .....

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n, 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 2 .....

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