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M/s Staunch Natural Resources Pvt. Ltd. Versus Commissioner of Customs, Kandla

2016 (6) TMI 952 - CESTAT AHMEDABAD

Claim of refund of export duty paid where goods could not be exported - Period of limitation - even though on payment of export duty, the Let Export Order (LEO) was received on 09.12.2011, but since they were not able to get any buyer, the shipment was delayed and they requested for cancellation of the shipping bill and for permission to file fresh shipping bill to export their goods. It is his contention that the shipping bill was allowed to be cancelled only on 23.01.2013 and they had filed th .....

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iple laid down by the Hon'ble Calcutta High Court in the case of Vedanta Ltd (2016 (5) TMI 437 - CALCUTTA HIGH COURT), the period of limitation would start from the date of payment of duty i.e. 05.12.2011. Consequently, in our view, the refund claim filed by the Appellant on 10.05.2013 is beyond the time limit prescribed under Section 27 of the Customs Act, 1962 hence barred by limitation. - Decided against the assessee. - Appeal No. C/10295/2015 - Order No.A/10525/2016 - Dated:- 20-6-2016 - DR. .....

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2013 on the ground that though they have paid export duty vide TR-6 Challan dt.05.12.2007 against the Shipping Bill No.6282271, dt.17.11.2011 for goods meant for export but the same could not be exported. The said refund claim was rejected by the adjudicating authority on the ground of limitation. Aggrieved by the said order, they have preferred an appeal before the learned Commissioner (Appeals), who in turn, had also rejected their appeal. Hence, the present appeal. 3. The learned Advocate sub .....

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within six months from the date of cancellation of shipping bill, therefore, the refund claim is well within time. It is his further contention that if the amount paid by them be considered as deposit and not as duty, then, the time limit prescribed under Section 27 of Customs Act, 1962 would not be applicable to their case. In support, the learned Advocate refers to the judgment of Hon'ble Mumbai High Court in the case of Insurance Company of the USSR (INGOSSTRAKH) Ltd Vs U.O.I. - 1989 (43) .....

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filing refund of Customs duty has been prescribed under Section 27 of Customs Act, 1962. It is his contention that the Appellant had paid the export duty on 05.12.2011, whereas the refund claim was filed only on 10.05.2013. Therefore, irrespective of the reasons, the said claim is barred by limitation prescribed under Section 27 of Customs Act, 1962. It is his contention that in view of the ratio laid down by the Constitutional Bench of Hon'ble Supreme Court in the case of Mafatlal Industrie .....

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observed that the time limit prescribed under Section 27 of the Act is applicable in considering the refund of export duty. 4. We have carefully considered the submissions advanced by both sides. 5. Section 27 of the Customs Act, 1962 reads as follows:- SECTION 27.Claim for refund of duty. - (1) Any person claiming refund of any duty or interest, (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissione .....

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the provisions of sub-section (2): Provided further that the limitation of one year shall not apply where any duty or interest has been paid under protest : Provided also that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded. Explanation. For the purposes of this sub-section, the date of payment of duty or interest in relation to a person, other than the importer, shall be construed as the date of purchase of goods by such person. (1A) The a .....

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in the following manner, namely : (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or di .....

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he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of [duty and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) the [duty and interest, if any, paid on such duty] paid by the importer, [or the .....

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back of duty payable under sections 74 and 75; (f) the [duty and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of [duty and interest, if any, paid on such duty] has not been passed on by the persons concerned to any other person. .....

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as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter .....

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