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2018 (8) TMI 111

Refund of Differential Duty - quantification of duty on the basis of on shore receipt quantity and not on the basis of quantity mentioned in the bills of lading - rejection of refund on the ground of time limitation - whether refund claim filed by the appellant is governed by Section 27 of the Customs Act, 1962 and consequently it is time-barred or otherwise? - Held that:- Though the amount of refund claim is related to duty paid and the said amount is customs duty including the duty on the .....

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de 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 th .....

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2012. The amount involved is ₹ 9,59,27,205/-. Respective bills of entries filed were assessed provisionally, considering the quantity mentioned in the respective bills of lading and where there was short receipt of quantity as against the quantity mentioned in the bills of lading. Later on, at the time of final assessment, the quantity mentioned in the respective bills of lading was considered and the actual quantity imported was not considered and the bills of entries were assessed final .....

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from the relevant date. Being aggrieved by order-in-original dated 04.12.2015, the appellant filed appeal before the Commissioner (Appeal) 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 Ind .....

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he relied on the following judgments:- (a) Star Textile Engg. Works Limited vs. Collector of Customs, Bombay - 1985 (22) ELT 552 (Tribunal). (b) Petronet LNG Limited vs. CC, Ahmedabad - 2012 (275) ELT 568 (Tri. Ahmd.) (c) Board of Turtees of The Port of Mormugao vs. UOI - 1993 (68) ELT 39 (Bom.) (d) Godrej & Boyce Mfg. Company Limited vs. Collector of Customs - 2001 (134) ELT 429 (Tri. Mumbai) (e) Joshi Technologies International vs. UOI - 2016 (339) ELT 21 (Guj.) (f) Vikas Globalone Limite .....

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ed from 04.12.2013 and not from the Tribunal s order dated 08.09.2014 which was received on 29.09.2014. Therefore, even on this fact also, the refund was filed beyond one year from the relevant date. Hence it is clearly time barred. 4. We have carefully considered the submissions made by both the sides and perused the record. We find that the limited issue to be decided by us is, whether refund claim filed by the appellant is governed by Section 27 of the Customs Act, 1962 and consequently it is .....

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t, 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 the Customs Act or Section 11B of the Central Excise Act, 1944. In the case of Collector of Central Excise, Chandi .....

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the Civil Court for recovery of the amount due to the department in case when such a remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for .....

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ided 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 .....

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Central Excise, New Delhi - 1998 (98) ELT 583 (SC), the Hon'ble Supreme Court held that refund claim filed before the departmental authorities to be governed by the time limit provided under the statute, general law of limitation not available. The decisions where assessee has invoked extraordinary jurisdiction of the High Courts and the Courts have applied the period of limitation of three years, the same is inapplicable to cases where the refund application has been moved before the Revenu .....

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jurisdiction cannot direct the Customs authorities to ignore the time limit prescribed under Section 27 of the Customs Act, even though High Court itself may not be bound by the time limit of the said Section, Articles 226 and 227 of the Constitution of India. In view of the above judgment, only the High Court, under writ jurisdiction, can exercise the inherent power provided in it but the said power cannot be enjoyed by the Tribunal. In the case of Paros Electronics Pvt. Limited vs. UOI - 1996 .....

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ibunal but since no stay was granted, the departmental authority was bound to sanction the refund claim in terms of CBEC Circular 572/9/2001-CX dated 22.02.2001. The relevant para of the Circular is reproduced as under:- (3) The cases where refund arises due to order of Commissioner (Appeals) or Commissioner of Central Excise/Customs and decision is taken to contest them before CEGAT. In such cases appeal/stay application should be filed expeditiously well before the expiry of stipulated period .....

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ment of duty by a special order issued under sub-section (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; As per clause (b) of sub Section (1B) of Section 27, where the duty became r .....

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