TMI Blog2016 (2) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2015, SPECIAL CIVIL APPLICATION NO. 14199 of 2015 - - - Dated:- 17-12-2015 - MR. AKIL KURESHI AND MR. MOHINDER PAL, JJ. FOR THE PETITIONER : MR PARESH M DAVE, ADVOCATE FOR THE RESPONDENT : MR RJ OZA, ADVOCATE, PRIYANK P LODHA, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These petitions arise in a common background. They would, therefore, be disposed of by this order. Brief facts as emerging in SCA No.14190 of 2015 may be recorded. 2. Petitioners have approached for a direction to the Kandla Customs Commissionerate and Kandla Special Economic Zone (SEZ) to forthwith decide the refund applications filed by the petitioners and return to the petitioners the excess amount of duty collected, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged 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 perse did not have any statutory power either to process the refund claims or entertain appeals or reviews. Appeals and reviews ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the prescribed time. Subsection(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 subsection(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 11B of the Excise Act as the case may be. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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