9911796707
TMI Blog2018 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of five bills of entry. The Department's appeal to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) was dismissed on 30-4-2008 [2008 (229) E.L.T. 233 (Tribunal)]. The petitioner's application for refund was sanctioned by an order dated 15-10-2008 in respect of five bills of entry. The Department's appeal against the order of the CESTAT was dismissed by the order of the Supreme Court on 12-2-2009 [2009 (235) E.L.T. 214 (S.C.)]. This petition, therefore, is not concerned with these five bills of entry. 4. By an order dated 6-5-2008 the Commissioner (Appeals), however, took a contrary view and dismissed the petitioner's appeal in respect of the remaining three bills of entry. The Tribunal, however, by an order dated 9-5-2013 allowed the appeal. 5. The petitioner made an application for refund under Section 27 of the Customs Act, 1962 only on 6-5-2015 i.e. beyond the period of one year from the date of the order of CESTAT namely 9-5-2013. We have held that the period of one year prescribed in Section 27(1) does not apply to this case in view of the second proviso thereto. Section 27, in so far as it is relevant, reads as under :- "SECTION 27.&emsp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order dated 14-2-2017. Respondent No. 2 did not reject the claim on the ground that the payment was not made under protest but on the ground that it was made more than one year after the date of the order of refund dated 9-5-2013. He held that once the dispute is settled by the authority, the fact of the duty having been paid under protest no longer remains relevant and the relevant date to be reckoned is the date of the order of the Appellate Authority. It was observed that a view to the contrary would entitle a party to make an application for refund at any time for an indefinite period. Reliance was placed in this regard on the judgment of the Supreme Court in Dena Snuff (P) Ltd. v. Commissioner of Central Excise, Chandigarh - 2003 (157) E.L.T. 500 (S.C.). The respondents contend that the application for refund having been filed more than one year from the date of the order of the refund is barred by limitation in view of the provisions of Section 27 of the Customs Act, 1962. 7. Sub-section (1) of Section 27 of the Act provides that any person claiming refund of any duty or interest may make an application "before the expiry of one year from the date of payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1B) as well. A view to the contrary would render the second proviso to sub-section (1) otiose. 11. The respondents contend that this interpretation would render sub-section (1B) otiose. The error in this contention is evident from the fact that even if duty is not paid under protest, the assessee would be entitled to the period of one year as computed in accordance with sub-section (1B). Thus, sub-section (1B) is applicable to cases where the second proviso does not apply. 12. The Tribunal relied upon the following observations of the Supreme Court in Dena Snuff (P) Ltd. (supra) :- "5. As far as the first submission is concerned, we are of the view that the Tribunal's appreciation of the relevant paragraph in Mafatlal Industries was correct. The "cause of action" of the appellant would arise only after the final dispute regarding the classification list had been settled by this Court. That was done as recently as on 28-8-2003. The application for refund by the appellant was, therefore, premature. We have noted the proviso to sub-section (1) of Section 11B which says that the period of limitation of one year prescribed under sub-section (1) will not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full ..... X X X X Extracts X X X X X X X X Extracts X X X X
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