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M/s. D.H.L Express (I) Pvt. Ltd. Versus Commissioner of Service Tax Bangalore Service Tax-I

2017 (10) TMI 766 - CESTAT BANGALORE

Refund of excess duty paid - denial on the ground that the same is time-barred and that required documents were not furnished by the appellants - Held that: - the appellants have filed the refund claim on 06.05.2012 whereas originally M/s. BEML filed the refund claim which was rejected by Assistant Commissioner vide his Order-in-Original dated 13.03.2012 on the ground that BEML has neither paid the duty nor borne the duty. After the rejection of refund claim by BEML, M/s. BEML has not filed appe .....

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- Appeal dismissed - decided against appellant. - C/26682/2013-SM - 22431/2017 - Dated:- 12-10-2017 - Shri S. S. Garg, Judicial Member Shri B. Venugopal, Advocate For the Appellant Dr. J. Harish, Deputy Commissioner (AR) For the Respondent ORDER Per: S. S. Garg The present appeal has been filed against the impugned order dated 28.02.2013/06.03.2013 passed by the Commissioner of Customs (Appeals) wherein the appeal of the appellant is rejected. Briefly the facts of the present case are that .....

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me-barred and that required documents were not furnished by the appellants. The brief back ground of the refund claim is that there was a clerical error in the application of exchange rate which resulted in arriving at the wrong assessable value and payment of excess duty. The appellants approached the authorities for rectification of error and reassessment of Bill of Entry. The appellants were advised to approach the Commissioner of Customs (Appeals) for obtaining direction for reassessment. Ac .....

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Bangalore had filed a refund claim on 16.04.2009 for ₹ 42,26,975/- (Rupees Forty Two Lakhs Twenty Six Thousand Nine Hundred and Seventy Five only) being the duty paid in excess on account of wrong adoption of exchange rates. However, the refund claim was rejected by the Assistant Commissioner of Customs by an order bearing Order-in-Original No. 100/2012 dated 13.03.2012 on the ground that M/s. BEML, Bangalore had neither paid nor borne the duty and also had not accounted the said amount a .....

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ted. 2. Aggrieved by the order of rejection, the appellant filed the appeal before the Commissioner (Appeals) who rejected the appeal of the appellant and hence the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and circumstances and the position of law. He further submitted that the appellants have furnished all the docume .....

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d without an application for refund under Section 27 of the Customs Act. He also submitted that the excess duty paid on account of clerical error is only a deposit and not the duty and therefore the provisions of Section 27 of the Customs Act are not applicable. He also submitted that BEML had also filed a refund application on 16.04.2009 but their claim was rejected on 13.03.2012 on the ground that they have neither paid the duty nor borne the duty in terms of Section 27 of the Act. In support .....

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the authorities. He further submitted that the appellant filed the refund claim on 06.05.2012 after a lapse of about three years from the date of payment of duty. He further submitted that the reassessment was made on 30.12.2009 consequent to the issue of Order-in-Appeal dated 30.06.2009 passed by the Commissioner (Appeals). 6. After considering the submissions of both the parties and perusal of the impugned order, I find that in the present case, the appellants have filed the refund claim on 06 .....

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also find that as per Section 27 of the Customs Act, the time for filing the refund claim has to be strictly followed and the argument of the learned counsel for the appellant saying that it was only a deposit and not the duty is not tenable in law. I also find that the learned Commissioner (Appeals) has considered all the decisions relied upon by the appellant and has rightly come to the conclusion that the time limit as prescribed under Section 27 of the Customs Act is applicable in the presen .....

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ourt has also held in the Doaba Cooperative Sugar Mills case that if the payment of duty was made under a mistake of law the appellant may seek recourse to such an alternative remedy. In this case, even though the payment of duty is due to arithmetical or clerical mistake, still the only provision for refund under the Customs Act is Section 27 of the Customs Act, 1962 and there is no other provision providing for a refund by the Customs authorities under the above mentioned Act. In such cases, t .....

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