TMI Blog2016 (6) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... veals that the period of limitation starts from the date of payment of duty. Exceptions are mentioned in the said provision viz. duty paid under protest, duty paid during provisional assessment, etc. In the present case, the duty has been finally assessed and paid by the Appellant following self assessment procedure on 05.12.2011 and Let Export Order was issued thereafter. Therefore, in view of the principle 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contention that the shipping bill was allowed to be cancelled only on 23.01.2013 and they had filed the refund claim on 10.05.2013. It is his claim that since they filed the refund claim 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) ELT 624 (Bom.), judgment of Hon'ble Delhi High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest : Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 direction; (c) where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment.] (2) If, on receipt of any such application, the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] is satisfied that the whole or any part of the [duty and interest, if any, paid on such duty] paid by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal [, National Tax Tribunal] or any Court or in any other provision of this Act or the regulations made there under or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant on 10.05.2013 is beyond the time limit prescribed under Section 27 of the Customs Act, 1962 hence barred by limitation. 7. The contention of the learned Advocate that the export duty paid be considered as deposit is unacceptable being devoid of merit in view of the judgment of Constitutional Bench of Hon'ble Supreme Court in Mafatlal Industries case (supra). On the contrary, we find force in the contention of Ld. AR for the Revenue that the refund arising out of the duty paid erroneously under the Customs Act, 1962 ought to be governed by the provisions of the said Act in view of the principle of law laid down in Mafatlal Industries case. Consequently, the limitation prescribed under Section 27 of the Customs Act, 1962 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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