TMI Blog2007 (8) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... . The CESTAT held that although the cess was notpayable by the Appellants, the refund applications were rightly rejected sincethey were filed beyond the statutory time limit prescribed under Section 27 ofthe Act. 2. The brief facts leading to the filing of these appeals are that both the Appellants are 100% Export Oriented Units ('EOUs') engaged in the manufacture of meat and meat products. A cess was leviable on meat products in terms of Serial No. 2 of the Schedule to the Agricultural and Processed Food Products Export Development Authority Cess Act, 1985 ('Cess Act'). The Ministry of Commerce and Industries, Government of India by a notification dated 17 th January, 2001 fixed 0% cess for all 100% EOU. It is stated by the Appellants that even prior to the notification fixing 0% cess, the Appellants had been informed by the Export Promotion Council ('Council') that the matter had taken up by the Council with the Government of India for lifting of the cess in respect of export of meat products produced in the EOUs and that the matter was under the active consideration of the Government. The Appellants were accordingly advised to pay the cess under protest. The Appellants subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly to the extent of Rs.33,67,964 was admitted but even the said sum was directed to be credited to the Consumer Welfare Fund. As regards the Hind Industries Limited, the claim for refund was limited to a sum of Rs.4,97,937 and this sum was also directed to be credited to the Consumer Welfare Fund. The Assistant Commissioner held that no reliance could be placed on the letter dated 17 th January, 2001 and that in any event the protest was deemed to be finalized on 17 th January, 2001, the date on which the notification was issued. On that basis it was held that the refund application should have been filed within six months thereafter in terms of Section 27 (1) of the Act. 4. The appeals filed by the Appellants against the aforementioned orders were dismissed by the Commissioner of Customs (Appeal) by the common order dated 26 th August, 2004 The Commissioner (Appeals) held that all claims for refund ought to be filed only in terms of Section 27 of the Act read with Rule 11 and under no other provision and in no other Forum. Further the Commissioner (Appeals) held that the Assistant Commissioner erred in crediting the amount of refund to the extent allowed, to the Consumer W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuance of an order of assessment; or (ii) borne by him, may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Customs or Deputy Commissioner of Customs- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty, in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally by calculated taking into account the principle underlying Clause (c) of sub-section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be, since the enactments do not contemplate any of their provisions being struck down and a refund claim arising on that account. In other words, a claim of this nature is not contemplated by the said enactments and is outside their purview.' 12. The relevant passages of the judgment in Anam Electrical Manufacturing Co. reads as under (ELT, p.262-63): 'FORMAT ORDER Pursuant to the directions gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wgong [1988] 33 ELT 249 (SC) is more apposite, in the facts of the present case. In the said case, the demand raised against the Appellants under the provision of Assam Taxation (On Goods Carried by Road and Inland Waterways) Act, 1954 was struck down by the High Court but the consequential relief of refund of tax collected illegally was not allowed on the ground that it was beyond the period of limitation prescribed under that Act. While allowing the appeal, the Hon'ble Supreme Court held that the provision under the said Act for refund would apply 'only in a case where money is paid under the Act.' It was observed in para 13 as under (ELT, p.254): 'Under Article 113 of the Limitation Act, 1963 the limitation was the period of three years from the date the right to sue accrues. It may be noted that in the instant case under Section 23 of the Act, it was provided that the Commissioner shall, in the prescribed manner refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under this Act either by cash or, at the option of the producer or dealer, be set off against the sum due from him in respect of any other period. Section 23 applies only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m authorities in the instant case were bound to refund the cess erroneously paid by the Appellants for the period from 15 th January, 2001 till 19 th February, 2002 under a mistake of law. They had paid the cess when in fact no such cess was payable. There is no question of processing a claim of refund of such amount in terms of the Customs Act at all because the payment made mistakenly was not under that Act. In the circumstances, the period of limitation under Section 27 of the Act would not apply, as explained in Salonah Tea Company Limited. The applications for refund having been made well within the period of three years' after discovery of mistake by the Appellants, are not barred by limitation. Question (a) in para 7 above is accordingly answered in favour of the Appellants. Consequently, the need to answer question (b) does not arise. 17. In that view of the matter, the impugned order dated 22 nd May, 2006 passed by the CESTAT, the order dated 26 th August, 2004 passed by the Commissioner (Appeals) and order dated 1 st April, 2003 passed by the Assistant Commissioner (Refund) are hereby set aside. A direction is issued to the Respondents to refund each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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