TMI Blog2018 (11) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... f any refund - Appeal dismissed - decided against appellant. - E/10743/2018-SM - A/12615/2018 - Dated:- 20-11-2018 - Mr. Ramesh Nair, Member (Judicial) For the appellant : Shri Willingdon Christian, Advocate For the respondent : Shri Jeetesh Nagori, Addl. Commr. (AR) ORDER This appeal is directed against the order in appeal no. VAD-EXCUS-001-APP-698-2017-1 8 dated 20.12.2017 passed by Commr (A) Vadodara whereby the matter of refund was remanded to the Adjudicating Authority to verify the facts on the basis of various books of accounts that whether the appellants have passed on the incidence of refund to any other person or otherwise. In other words, to test the unjust enrichment as provided under section 11B of Central Excise Act, 1944, the appellant filed the present appeal challenging the said order. 2. Shri Willingdon Christian, Ld. Advocate appearing on behalf of the appellant at the outset submit that the refund sought for by the appellant is in respect of demand of duty raised by way of show cause notice dated 09.03.1999. Against the demand, the appellant before Adjudication paid an amount of ₹ 38 lakhs. He submits that the demand came to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 decision in assessee s own case. In view of the above judgment also it is clear that appellant could have filed the refund claim within one year from the date of Commissioner (Appeal) order by which the dispute on demand of duty was settled. In view of the above discussions, we are of the view that the departmental authority has no legal authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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