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2016 (2) TMI 55 - GUJARAT HIGH COURT

2016 (2) TMI 55 - GUJARAT HIGH COURT - TMI - Refund of 4% special additional duty - Jurisdiction - SAD was collected on the purchases made by the petitioners from the units situated in the SEZ - According to the petitioners, as per Government of India decision, such additional duty was not payable - Held that:- the petitioners' refund claims remain in suspended animation on account of confusion between the Customs Department and the SEZ organizations, we direct the competent authority under the .....

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n 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, with interest. The case of the petitioners is that 4% special additional duty was collected on the .....

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that they do not have powers to do so. 3. Under same or similar circumstances, Division Bench of this Court in a judgment dated 20.11.2014 in SCA No.11876 of 2014 and connected petitions in case of Anita Exports, held that the power to grant refund of excess duty collected is with the Customs authorities. In fact, it is the duty of Customs authorities to process and decide such refund applications. It was held that without amending the statutory provisions, Government of India could not have dis .....

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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 Ministr .....

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tatutory 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 statuto .....

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tion (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. 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 .....

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tioner/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 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 t .....

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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 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. 18. Under the circumstances, in our opinion, the directives issued by the Ministry 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 .....

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