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2016 (6) TMI 394 - CESTAT MUMBAI

2016 (6) TMI 394 - CESTAT MUMBAI - TMI - Refund - Period of limitation - Short shipment of goods which has not been imported - Provision of Section 27 is not applicable - Held that:- it is found that the appellant have admittedly paid the Customs duty only after import and verification it was found that there is a short shipment of the goods. However, even though there is a short shipment but the amount paid by the importer/appellant is admittedly as a Customs duty only. Only for the reason that .....

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l also apply for sanction of refund. There is no other provision for refund of Customs duty except under Section 27 of the Act, therefore limitation is applicable. - However, on the issue of limitation for the purpose of refund, the Honíble Supreme Court in the various judgments categorically held that for refund of any amount, the statutory time limit provided under the Customs/Central Excise Act has to be followed mandatorily. Therefore, this issue has been clearly settled by the Honíble S .....

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the statute and therefore cannot relax the time limitation provided under the statute. As per my above discussion and settled legal position, the refund claim being filed after 6 month is hit by limitation and therefore correctly rejected by the lower authority. The impugned order is upheld. - Decided against the appellant - Appeal No. C/694/2004 - A/87686/16/SMB - Dated:- 25-4-2016 - Shri Ramesh Nair, Member (Judicial) Shri Kevin Shah, C.A. for Appellant Shri D.K. Sinha, Asstt. Commr. (A.R) fo .....

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The adjudicating authority found that the duty was paid on 31.5.2000 and refund application was filed by the appellants in the CRARS on 04.12.2000. So, the same was found to be beyond prescribed period of 6 months in terms of Section 27 of Customs Act, 1962. The refund claim was rejected being time barred. Aggrieved by the adjudication order dt. 16.4.2002 the appellant filed appeal before the Commissioner (Appeals), who upheld the Order-in-Original and rejected the appeal filed by the appellant, .....

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not for any other amount become refundable. He submits that as per Section 12 of Customs Act, the Customs duty is payable on dutiable goods and as per the said Section, the goods which is imported is only liable for duty and become a dutiable goods. In the present case, admittedly goods were not imported therefore no dutiable goods exists, accordingly the amount paid is not on the dutiable goods but shall be treated as advance payment therefore provisions of Section 27 will not apply. In support .....

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. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates findings of the impugned order. He submits that firstly the argument made by the Ld. Counsel was not put forth either before the original authority or before the Commissioner (Appeals) therefore he is not entitled to raise this new ground before this Tribunal. Secondly, even though the goods were not imported but admittedly the amount paid by the appellant is in the form of Customs duty and under the account head there .....

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ubmissions made by both the sides. I find that the appellant have admittedly paid the Customs duty only after import and verification it was found that there is a short shipment of the goods. However, even though there is a short shipment but the amount paid by the importer/appellant is admittedly as a Customs duty only. Only for the reason that the goods were not imported the nature of the amount paid as duty will not stand altered, therefore whatever duty was paid by the appellant is a Customs .....

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tation is applicable. It is the submission of the Ld. Counsel that since the goods were not imported, the amount paid on the short shipped goods is not a duty, hence Section 27 is not applicable for refund of such amount. In this regard, I am of the view that in every case of refund the amount is refundable only where it is not payable as duty and accordingly every such amount shall be treated as an amount other than the duty. If this is accepted then Section 27 of the Act will stand redundant, .....

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visions of refund of such duty is only provided under Section 27 and there is no any other provision prevails. In my view any amount to be refunded, shall be refunded in accordance with the provisions of Section 27 which include condition of time limit. As regard judgment cited by the Ld. Counsel, I observe that in case of Century Textiles & Industries Ltd. (supra), the issue is not related to limitation, therefore the same is not relevant. As regard the I.T.C. Ltd. (supra), I find that this .....

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s made before the departmental authorities, limitation provided under the Customs Act/Central Excise Act or Rules made there under is applicable. The authorities functioning under the Act bound by its provision. Relevant portions of some of the Hon ble Supreme Court judgments on the issue are reproduced below: (i) Collector of C.E., Chandigarh Vs. Doaba Co-operative Sugar Mills 1988 (37) E.L.T. 478 (S.C.) wherein it was held that- 6. It appears that where the duty has been levied without the aut .....

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les framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department, the provisions of limitation prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of .....

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of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs [1987(30) E.L.T.641 (S.C.) = 1985 E.C.R. 289]. (ii) Miles India Limited Vs. Assistant Collector of Customs 1987 (30) E.L.T. 641 (S.C.) wherein it was held that- After the matter was heard for some time and it was indicated that the Customs Authorities, acting under the Act, were justified in disallowing the claim fo .....

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d. The appeal is accordingly dismissed as withdrawn . (iii) Assistant Collector of Customs Vs. Anam Electrical Manufacturing Co. 1997 (90) ELT 260 (S.C.) the Hon ble Supreme Court with regard to limitation under Section 11B lays down the following guidelines : Where refund application was filed by?(1) manufacturer/purchaser beyond the statutory time limit of Section 11B/27 ibid. (iv) Bajaj Foods Ltd. Vs. Commissioner 2015 (320) E.L.T. A197(Guj.) wherein it was held that- The Appellate Tribunal i .....

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