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2018 (1) TMI 530

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..... d, it refers only to the interest that becomes payable under Section 47. As a matter of fact, the present Sub-Section (2) of Section 61, was amended only by Act 27 of 1999. The amendment, on which, strong reliance is placed by the department, to Section 27(1), came in 1991. Yet, Section 61(2) does not refer to Section 27. Appeal dismissed - decided against Revenue. - Civil Miscellaneous Appeal Nos. 3453 to 3455 of 2017 - - - Dated:- 8-12-2017 - S. Manikumar And R. Pongiappan, JJ. For the Appellant : Mr. A. P. Srinivas JUDGMENT ( Judgment of the Court was made by S. Manikumar, J ) Final Order Nos.757 to 759 of 2008, dated 23/7/2008, are impugned in the instant Civil Miscellaneous Appeals. 2. Short facts leading to the instant Civil Miscellaneous Appeals are as follows:- M/s. Lakshmi Machine Works Ltd., Coimbatore/respondent is the manufacture of textile machinery parts falling under Central Excise Tariff, 1985. They are maintaining a private Customs Bonded Warehouse in their premises, where imported goods are stored without payment of Customs Duties and cleared on payment of appropriate customs duty through P.D.account. The goods so cleared were used ca .....

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..... t Civil Miscellaneous Appeals, on the following substantial questions of law:- 1. Whether the Tribunal is right in holding that the time limit fixed for claiming refund of interest under Section 27 of the Customs Act, 1962 is not applicable to the party in dispute by relying on a outdated Boards Circular No.475/39/90-Cus, VII, dated 8/8/1990, which was not relevant after the Customs Amendment Act, 1991 , came into existence which has brought interest into the purview of Section 27 of the Customs Act, 1962 also along with duty? 2. Whether the Tribunal was right in deciding an appeal in favour of the party without ever discussing the question of unjust enrichment on which the refund claims were rightly rejected by the lower fora? 3. Whether the Tribunal was right in deciding the appeal in favour of the party by relying on Apex Court judgment in the case of M/s. Bangalore Wire Rod Mills reported in 1996 (83) ELT 251 (SC) in which there was no discussion at all about Section 27 of the Customs Act, 1962? 4. Whether the Tribunal was right in holding that the warehousing period applicable would be the period in force on the date of deposit of the goods in the warehouse .....

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..... goods warehoused has to first have the goods assessed under Section 17 or Section 18, as the case may be, and then execute a bond binding himself to pay double the amount of duty assessed on the said goods and undertaking to pay on or before a date specified in a notice of demand all duties, rent and charges claimable on account of such goods under this Act, together with interest on the same from the date so specified at the rate of six per cent per annum or such other rate as is for the time being fixed by the Board . Clause (a) of sub-section (1) of Section 61, as obtaining on the date of warehousing of the said goods, [it is not disputed before us that the imported goods represent consumable stores within the meaning of Section 61 (1) (a)] prescribed a period of three years beyond which the imported goods could not be warehoused. On May 14 1983, however, this clause was amended and the period of three years was reduced to one year. Sub-section (2) of Section 61 [as inserted by Act 11 of 1983] reads as follows:- (2) Where any warehoused goods remain in a warehouse beyond the period of one year or three months specified in clause (a) or clause (b) of sub-section (1) by reaso .....

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..... rom time to time during the said period. The State has preferred these appeals contending that (1) it is entitled to interest from November 11, 1982 and (2) the interest should be charged calculating the duty @ ninety per cent fro the entire period November 11, 1982 to September 9, 1988. 5. We do not think that the claim of the appellant is sustainable in law. The language of Section 59 (1) (b), as it stood at the relevant time, is clear and unambiguous. It says that the importer shall have to execute a bond undertaking inter alia to pay interest from the date specified in the notice of demand. We have already extracted clause (b) in full hereinbefore. The liability to pay interest arises only after the expiry of the period prescribed in the notice of demand. It has been held by the High Court that the present matter is not governed by Section 61(2), as it stood at the relevant time, but by Section 59 (1) alone. Indeed, it is submitted that when the respondent applied for extension of time of warehousing under Sectin 61 (2), the Government told it that the said provision had no application and hence, time cannot be extended thereunder. Once that is so, we must go by what Secti .....

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..... on such duty - (i). paid by him in pursuance of an order of assessment or (ii). borne by him, may make an application for refund of such duty and interest, if any, paid on such duty, to the Assistant Commissioner of Customs - a. in the case of any importer made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; b. in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty, in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 28 C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid on such duty, in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty and interest, if any, paid on such duty, had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Ce .....

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