TMI Blog2017 (12) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... orities to levy customs duty at the prescribed rates for goods imported into or exported from India. Thus, the incident of levying of customs duty is on export of goods. It is however true that in terms of subsection (1) of section 16 of the Customs Act, the rate of duty and tariff valuation would be determined as applicable to any export goods on the date on which, upon such goods being entered for export, the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51. Reverting back to the facts of the case with this statutory scheme in mind, what actually happened was that the petitioner applied for permission of export of filing shipping bills and depositing self assessed tax. The Customs authorities satisfied that all the requirements are fulfilled, granted permission for export as envisaged under subsection (1) of section 51. However, the export never took place. The assessment of tax be it self assessed or assessed by the Customs authorities would be in terms of section 16 on the basis of the valuation and rate applicable at the time of entry of goods for export. The levying of tax however, would be under section 12 upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion allowed - decided in favor of petitioner. - Special Civil Application No. 4638 of 2017 - - - Dated:- 5-12-2017 - MR. AKIL KURESHI AND MR. A.Y. KOGJE, JJ. For The Petitioner : Mr. Km Antani, Advocate For The Respondent : Priyank P Lodha, Advocate ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has prayed for a direction for refund of a sum of ₹ 1,45,39,200/, which according to the petitioner, has been wrongly withheld by the department. The petitioner has also challenged order dated 20.06.2016 passed by the CESTAT. 2. Brief facts are as under. 3. The petitioner is a private limited company and is engaged in the business of export. On 17.11.2011, the petitioner filed a shipping bill with the Commissioner of Customs, Mundra, for export of Iron ore Fines to one M/s Synergy Resources International Group, China. On self assessment, the petitioner deposited a sum of ₹ 1,45,39,200/by way of export duty at the rate of 20% of the value of the goods on 05.12.2011. The Customs authorities thereupon issued a LET export order on 09.12.2011. Thus, the Customs authorities remitted the petitioner to carry out the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to unjust enrichment. He however, held that the application for refund of the duty was filed beyond a period of one year from the payment of duty and the application was thus, hit by the limitation prescribed under section 27 of the Customs Act. The petitioner carried this order before the Appellate Commissioner and having failed, before the Tribunal. Tribunal by the impugned judgment, upheld the orders passed by the Customs authorities. Hence, this petition. 8. Learned advocate Shri Buch for the petitioner contended that the amount of ₹ 1,45,39,200/was deposited with the Customs department for export of goods. Till the goods are actually exported, such deposit would not partake the character of the customs duty. In the present case, since the export actually failed, the amount never remained with the department as the customs duty. Limitation under section 27 of the Act therefore could not have been applied. In the alternative, he submitted that the purposive interpretation of section 27 would have to be adopted, failing which, in the case the present one, an assessee would be without any remedy. He pointed out that the petitioner's right or the cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revised valuation of the goods, upon which, LET order was also passed. (vii)On 22.04.2013, the petitioner applied for refund of the sum of ₹ 1,45,39,200/. 11. In this background, we may peruse the statutory provisions. Section 2(18) of the Customs Act defines term 'export' as to mean, with its grammatical variations and cognate expressions, taking out of India to a place outside India. Section 2(20) defines the term 'exporter' as under: (20) exporter , in relation to any goods at any time between their entry for export and the time when they are exported, includes [any owner, beneficial owner] or any person holding himself out to be the exporter; 12. Section 12 of the Customs Act pertains to dutiable goods. Subsection (1) of section 12 provides that except as otherwise provided in the Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act or any other law for the time being in force, on goods imported into, or exported from India. Subsection (1) of section 16 of the Customs Act provides that the rate of duty and tariff valuation applicable to any expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the period of limitation of one year shall be computed in the following manner, namely: ( a) in the case of goods which are exempt from payment of duty by a special order issued under subsection (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 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 reassessment, from the date of such reassessment. 15. Section 50 of the Customs Act pertains to entry of goods for exportation. Under subsection (1) of section 50, the exporter of any goods would make entry, thereof by presenting to the proper officer a bill of export in the prescribed form. Section 51 of the Customs Act pertains to clearance of goods for exportation. Subsection (1) of section 51 which is rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs authorities would be in terms of section 16 on the basis of the valuation and rate applicable at the time of entry of goods for export. The levying of tax however, would be under section 12 upon the actual export of goods. Subsection (1) of section 51 does require that before the proper officer grants permission for export of goods, he would have to be satisfied that the exporter had to be paid the duty assessed on such goods and other charges payable under the Act. Naturally since the permission for export cannot be granted unless the duty is actually paid, nevertheless, the amount so deposited would be appropriated towards duty only upon exportation of the goods. 18. We may now refer to the provisions of section 27 of the Act. Section 27 provides for a mechanism for refund of the duty. Under subsection (1) thereof, the person claiming any refund of the duty or any interest thereof paid or borne by him can make an application in prescribed form to the competent authority before expiry of one year from the date of duty or interest thereof. If the amount deposited by the petitioner is treated as a duty paid and literal interpretation of subsection (1) of section 27 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause( a), the duty would become refundable on the goods being returned after exportation. Otherwise then by resale. Clause( b) would cover a situation where the goods are reimported within one year from the date of exportation. The right of the petitioner to seek return of the amount deposited while filing the shipping bill thus stems from the fact that the anticipated export never took place. 21. As noted, the Customs department permitted cancellation of shipping bill, filing of fresh shipping bill and export of goods on the basis of the current valuation and rate of duty in connection with such fresh shipping bill. If the stand of the department was that it was not possible to allow cancellation of shipping bill after a long gap of time such a stand has not been adopted. The department on the contrary permitted the petitioner to cancel the shipping bill. Consequently, the LET order based on such shipping bill stood automatically canceled. In fact, the petitioner was allowed to file fresh shipping bill, pay fresh duty and carry out export of the same goods. That the petitioner under no circumstances can be asked to pay export duty twice on single export of the same consignme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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