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Hashem Aligholipour Hammami Alias Salbas Selva Versus Union of India and Ors.

2018 (2) TMI 853 - BOMBAY HIGH COURT

Interest u/s 27(a) of the Customs Act, 1962 - Iranian National - Baggage Rules - foreign currency - Smuggling - section 27 and 27(a) of the CA - Held that: - any person claiming refund of any duty or interest paid by him or borne by him may make an application in such form as may be prescribed for such refund to the named authority before the expiry of one year from the date of payment of such duty or interest. How that application should be made, what it should accompany and later on how it is .....

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or such delayed refund interest cannot be granted or awarded, absent a specific provision in the statute. Section 27 of the Act is not such a provision and that is erroneously relied upon. Once that provision together with Section 27A deals with specific cases of refund application claiming refund of duty or interest paid or borne by the applicant, then, that refund being sanctioned, delayed payment of that amount carries interest. Such is not the nature of the amount recovered from the petition .....

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Jetly for the respondents. P.C.: This petition under Article 226 of the Constitution of India seeks the following reliefs: (a) That this Hon'ble Court be pleased to issue Writ of Certiorari or any other Writ, Order or direction in the nature of certiorari by calling upon the records pertaining to file No. F. No. AIRCUS39R/ 48/2009 pending before the 3rd Respondent and/or suitable directions to be passed for the Respondent No.3 to decide the interest component whole together under Section 27 .....

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on 14th January 2002. (c) Pending hearing and final disposal of the instant petition the Respondents be directed to consider the interest component of the Petitioner under Section 27(a) of the Customs Act, 1962 and submit the report before this Hon'ble Court. 2. The petitioner says that he is an Iranian National being a resident of Iran. He carries Iranian Passport. The 1st respondent is Union of India. The 2nd and 3rd respondents are the officers of the 1st respondent exercising powers, di .....

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valued at the time at ₹ 28,02,140/. It was seized on the pretext that the foreign currency was smuggled out of India and was liable for confiscation. There are various other documents seized. The petitioner was subjected to proceedings under both the Customs Act, 1962 and the then Foreign Exchange Regulation Act, 1973. The petitioner was subjected to trial before the Criminal Court and also faced an adjudication after show cause notice was issued on him. On 30th March 2001, an order was pa .....

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ibunal, but the Department's appeal was dismissed by the Tribunal on 15th November 2002. Against this order, the Department preferred a writ petition in this Court being Writ Petition No.793 of 2002 which also was dismissed on 23rd August 2006. 6. The petitioner sought refund of the amount paid and that application of the petitioner ended in an order, copy of which is annexed to the memo of this petition at Annexure D page 43 of the paperbook. The petitioner was sanctioned a refund in the su .....

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ions 27 and 27A of the Act in this behalf. 8. On the other hand, Mr. Jetly would argue that Section 27 of the Act speaks of claim for refund of duty and it is that delayed refund which carries interest in terms of Section 27A of the Act. In this case, the payment is not of duty and, therefore, refund having sanctioned but such delayed payment of the refund in the nature sanctioned in this case does not carry any obligation to pay interest. Hence, the writ petition is misconceived and must be dis .....

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) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person. (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namel .....

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aid 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. (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 the applicant is refundable, he may make an order accordingly and th .....

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d on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the dut .....

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essment. Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty and interest, if any, paid on such duty 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 ma .....

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a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notific .....

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o that applicant interest at such rate, not below five percent and not exceeding thirty percent per annum as is for the time being fixed by the Central Government by Notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty: Provided that where any duty, ordered to be refunded under sub-section (2) of section 27 in respect of an application under sub-section (1) o .....

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escribed for such refund to the named authority before the expiry of one year from the date of payment of such duty or interest. How that application should be made, what it should accompany and later on how it is to be dealt with, is set out in sub-section (2) of Section 27 of the Act. 11. Then Section 27A sets out the obligation on delayed refund. That opens with the words if any duty ordered to be refunded under sub-section (2) of Section 27 to an applicant is not refunded . 12. Mr. Kantawala .....

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interest. That obligation, therefore, has to be discharged by respondent nos.2 and 3. 13. We are unable to agree with Mr. Kantawala for more than one reason. In the present case, the order of confiscation of foreign currency was made on 30th March 2001 with option to redeem the same on payment of redemption fine of ₹ 3,00,000/and penalty of ₹ 1,00,000/on the petitioner passenger. Being aggrieved by that order, an appeal was preferred to the Tribunal. The Tribunal directed the petitio .....

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smissed on 23rd Augusts 2006. The petitioner, therefore, relying on the order passed by the Tribunal, lodged the refund claim. The refund claim itself says that there were confiscation of foreign currency and an order of adjudication was passed post service of a show cause notice on the petitioner. That ended with a direction to pay redemption fine and penalty as above. It is this application which was dealt with by the Deputy Commissioner of Customs. While dealing with the application for refun .....

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