TMI Blog2018 (2) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27(1). The petitioner shall be paid interest from 23.10.2007 i.e. 90 days after the date of the application under Section 27(1) viz. 23.07.2007 till payment - petition allowed. - Civil Writ Petition No. 13714 of 2016 - - - Dated:- 18-1-2018 - MR. S. J. VAZIFDAR AND MR. AVNEESH JHINGAN, JJ. For The Petitioner : Mr.Jagmohan Bansal, Advocate For The Respondent : Mr. Ish Puneet Singh, Advocate ORDER J.VAZIFDAR, CHIEF JUSTICE (ORAL ) The petitioner seeks a writ of certiorari to quash the communication dated 18.06.2016 rejecting its claim for interest and a writ of mandamus directing the respondents to pay interest as demanded. 2. On 23.07.2007, the petitioner had imported several consignments of goods, in respect whereof bills of entries were filed and the petitioner paid the duty on the basis of self assessment. On 23.07.2007, the petitioner filed 11 applications for refund of duty. 3. By an order dated 30.03.2008, the Assistant Commissioner of Customs sanctioned the refund but held that the same was not admissible as it constituted undue enrichment. The Assistant Commissioner, therefore, directed the amount of refund to be transferred to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: ( 2) If on receipt of any such application, the Assistant Commissioner of Customs is satisfied that the whole or any part of the [duty and interest, if any, paid on such duty] paid by the applicant is refundable, 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 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 exporter, as the case may be] if he had not passed on the incidence of such duty and interest, if any, paid on such duty] to any other person; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. The opening part of Section 27A refers to the duty ordered to be refunded under sub section (2) of Section 27 within three months from the date of receipt of application under sub section (1) of that Section . The reference to the application, therefore, is clearly to the one under Section 27 (1) and the order under sub section (2) is only in respect of the application under sub section (1). Section 27A then provides for the payment of interest from the date immediately after expiry of three months from the date of receipt of such application . The words such application refer to the application under Section 27(1). As we mentioned earlier, no other application is even referred to in the main part of Section 27A. It follows, therefore, that interest is payable under Section 27A from the expiry of 90 days from the date of the application for refund under Section 27(1). 11. The respondents' reliance upon the explanation is not well founded. The explanation does not deal with the period for which interest is paid. It only provides that the order of the Appellate Authority shall be deemed to be an order passed under sub section (2) of Section 27. This, in fact, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest under this section from the date immediately after three months from such date, till the date of refund of such duty. Explanation.-Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal or any court against an order of the Assistant Commissioner of Central Excise, under sub-section (2) of Section 11-B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the purposes of this section. The provisions of Sections 11B and 11 BB of Central Excise Act, 1944 correspond to Section 27(1) and 27A respectively insofar as they are relevant to this case. The Supreme Court held as under :- 9. It is manifest from the aforeextracted provisions that Section 11-BB of the Act comes into play only after an order for refund has been made under Section 11-B of the Act. Section 11-BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11-B of the Act, then the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
