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2018 (8) TMI 111

nd 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 actual receipt quantity. Therefore, 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 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 .....

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basis of quantity mentioned in the bills of lading and accordingly, allowed the appeal vide order-in-appeal dated 04.12.2013. Being aggrieved with the said decision, the department preferred appeal before this Tribunal and the same was rejected vide order dated 08.09.2014. Thereafter, the appellant filed claim for refund of differential duty. The refund claim was rejected by the Adjudicating Authority on the ground that the appellant became eligible for refund after the order-in-appeal dated 04.12.2013 passed by Commissioner (Appeal) whereas, the refund claim was filed by the appellant on 09.09.2015. Therefore, the refund claim was held as time barred as the same was filed beyond one year 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 India .....

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er, the appellant became eligible for refund and therefore, the period of one year shall be computed 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 time-barred or otherwise. We find that though the amount of refund claim is related to duty paid and the said amount is customs duty including the duty on the actual receipt quantity. Therefore, 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 n .....

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efund as they were bound by the period of limitation provided therefore in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs [1987(30) E.L.T.641 (S.C.) = 1985 E.C.R. 289]. 7. In the aforesaid view of the matter the Tribunal was right. The appeal, therefore, has no merits and it is accordingly not entertained and dismissed. There is no order as to costs. From the above judgment, it is clear that even if there is refund of duty which was recovered without authority of law, the refund made before the departmental authority, limitation 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 .....

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toms Act, 1962, the High Court order directing the Revenue to ignore the period of limitation and dispose of the refund claim stands set aside in the light of law declared in Mafatlal s case and the refund claim was held to be dismissed as barred by time. The Hon'ble Supreme Court in the case of UOI vs. Kirloskar Pneumatic Company - 1996 (84) ELT 401 (SC) held that the High Courts under writ 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 (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 t .....

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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 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 amount. Therefore, in terms of clause (b) of sub-Section (1B) of Section 27, the period of one year shall be computed from the date of Commissioner (Appeal) order. Accordingly, the refund application filed beyond one year from that date is clearly time barred. 8. The Hon'ble Supreme Court in the case of Dena Snuff Pvt. Limited vs. CCE, Chandigarh - 2003 (157) ELT 500 (SC) has held that in case of any dispute on merits, the period of limitation would start to run from the date of final decisi .....

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