TMI Blog2018 (8) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 27. The Hon'ble Supreme Court in various judgments held that all the refund claims of customs and excise has to be governed by Section 27 of the Customs Act or Section 11B of the Central Excise Act, 1944 - Any refund filed before the Customs/ Central Excise authorities can only process the claim under Customs/ Central Excise Acts and the departmental authorities have no jurisdiction to go beyond the provisions made under the Act and limitations provided under Section 27/Section 11B - reliance placed in the case of Collector of Central Excise, Chandigarh vs. Doaba Co-operative Sugar Mills [1988 (8) TMI 103 - SUPREME COURT OF INDIA]. Calculation of relevant date - Held that:- As per clause (b) of sub Section (1B) of Section 27, where the duty became refundable as a consequence of any judgment, decree, order or direction of the appellate authority, the limitation of one year shall be computed from the date of such judgment, decree, order or direction - In the present case, the demand of duty on short imported goods stands set-aside as per the order of Commissioner (Appeal) and as a consequence, the appellant become eligible for refund of the said amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal) who agreeing with the findings of the original authority, rejected the appeal filed by the appellant and upheld the order-in-original, therefore, the present appeal. 2. Shri Sujit Ghosh, ld. Counsel appearing on behalf of the appellant submits that the refund amount is towards the duty paid in respect of quantity of LNG which was not at all imported into India. Therefore, the quantity which was not imported was not liable for duty and hence, the amount paid on such short landed quantity cannot be treated as duty and therefore the refund of the same is not governed by Section 27 of the Customs Act, 1962. Consequently, limitation under Section 27 is not applicable in the facts of the present case. He alternatively submits that the issue whether on the short landed quantity of LNG duty is payable or otherwise, the same was finally decided by this Tribunal vide order dated 08.09.2014 which was received by the appellant on 29.09.2014. The refund claim was filed on 09.09.2015 therefore, from the date of receipt of Tribunal s order deciding the dispute on merits, refund claim was filed well within one year time i.e. 09.09.2015. Therefore, even if one year period is taken, the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the entire amount paid by the appellant is nothing but customs duty only irrespective to the fact that certain portion of the duty was not payable. Under the Customs Act, any amount which is refundable has to pass the test provided under Section 27 of the Customs Act, 1962. In the said Act, there is no other provisions made for refund of any amount which was paid either without authority of law or was not payable for any reason. Therefore, all the refund claims under the Customs Act has to be dealt with under the provisions of Section 27. The departmental authority has no legal authority to process and sanction the refunds going out of Section 27 of the Customs Act, 1962. Therefore, the Customs authorities have to process and dispose the refunds only and only under Section 27 of the Customs Act, 1962. Though in the identical facts, the Hon'ble Bombay High Court in the judgment cited by ld. Counsel, in case of refund, in respect of duty paid on short imported goods held that limitation under Section 27 is not applicable. However, the Hon'ble Supreme Court in various judgments held that all the refund claims of customs and excise has to be governed by Section 27 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion provided under Customs/Central Excise Act shall be applicable. The Hon'ble Supreme Court has held that authorities functioning under an Act is bound by its provisions and any refund proceedings beyond the limitation provided under the Customs/ Central Excise Act, the same can be initiated in the Civil Court. Accordingly, the time limit under the Customs Act is applicable. We are also of the view that the Tribunal being creature of the statue and under Customs Act have to deal with any refund case within four corners of the Customs Act, since the provisions for refund is only provided under Section 27 of the Customs Act, 1962. This Tribunal also cannot by-pass the same and decide the refund claims under general law. The Hon'ble Supreme Court in a land mark judgment in the case of Mafatlal Industries Limited vs. UOI 1997 (89) ELT 247 (SC) has endorsed the aforesaid judgment in the case of Doaba Co-operative Sugar Mills (supra). In the case of UOI vs. Namdang Tea Estate 2004 (164) ELT 132 (SC), the Hon'ble Supreme Court held that claim filed beyond the stipulated time is not admissible. In the case of UOI vs. VIP Industries Limited 1998 (101) ELT 8 (SC) the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided in it but the said power cannot be enjoyed by the Tribunal. In the case of Paros Electronics Pvt. Limited vs. UOI 1996 (83) ELT 261 (SC), the Hon'ble Supreme Court held that customs authorities cannot grant refund, being a creation of statute they are bound by limitation of Section 27 of the Customs Act. 5. On the analysis of above judgments of Hon'ble Supreme Court, the gist is that any refund filed before the Customs/ Central Excise authorities can only process the claim under Customs/ Central Excise Acts and the departmental authorities have no jurisdiction to go beyond the provisions made under the Act and limitations provided under Section 27/Section 11B. 6. As regards the alternative submissions made by ld. Counsel that refund claim was filed within time limit from the date of receipt of Tribunal order, we find that the issue on merits was already decided in favour of the appellant by the Commissioner (Appeal) vide order dated 04.12.2013, thereafter, the appellant became eligible for refund. Even though the department had filed appeal against the Commissioner (Appeal) order before the Tribunal but since no stay was granted, the departmental authority w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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