TMI Blog2020 (4) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been reflected in the 'receivables' or 'profit and loss' accounts. Admittedly, the sales had been completed in August 2001 whereas the differential duty was remitted only in September 2001, it appears clear to me as seen from the records of the Assessing Officer and his observations in the impugned order, that the incidence of duty has not been passed on in this case. There is thus no necessity for remand as this exercise and the result thereof is quite apparent from the existing records and the observations of the officer himself - decided in favor of petitioner. Interest on the refund claim - Section 27A of Customs Act - case of Revenue is that the provisions of Section 27A require interest to be paid on duty that has been ordered to be refunded under Section 27(2) but not refunded within three(3) months from date of receipt of application under Section 27(1) of the Act - HELD THAT:- The refund claim in this case was filed on 03.02.2016, the Application was returned as defective and the application re-presented on 14.03.2016. These dates are not in dispute. Thus, in the light of the discussion as above and the clear stipulation in Section 27B, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not charged to the profit and loss account but retained in 'receivables' account. 4. A first appeal was filed before the Commissioner (Appeals) that came to be rejected on 10.01.2017. In further appeal before the Central Excise and Sales Tax Appellate Tribunal (CESTAT), the petitioner partly succeeded, since by order dated 10.01.2017, the CESTAT remanded the issue to the file of the Assessing Authority in the following terms: 5.What is not in dispute is the eligibility of the refund claim. Both the lower authorities agree that the refund claim is sanctionable. However, they hold that the claim did not pass the test of unjust enrichment and accordingly, it requires credited to the Consumer Welfare Fund. One of the grounds for this stand is that the importer had not provided sufficient documents with regard to unjust enrichment. In fact, the original authority in his order, while sanctioning the amount ordering its credit to Consumer Welfare Fund, and rejecting the claim of the appellant for payment of interest and additional interest, has however ordered that the appellant shall submit the original documents pertaining to the subject refund claim as and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported by any statutory provision nor by any case law '. These statements are unacceptable and unbecoming of an Assessing Authority, who is to give effect to the order of the superior Authority and not stand in judgment over the same. In fact, the order of the CESTAT has, admittedly, been accepted by the Department as may be seen from the impugned order itself, at paragraph 15 thereof, where reference is made to communications of the Commissioner of Customs, Trichy dated 23.11.2017 and 01.12.2017 to such effect. 6. The observations of the Full Bench of the Supreme Court in Union of India and Others Vs. Kamlakshi Finance Corporation (55 ELT 433), regarding judicial discipline would be applicable on all focus in the present case. The Bench at paragraph 8, states as follows: 8. We have dealt with this aspect at some length, because it has been suggested by the learned Additional Solicitor General that the observations made by the High Court, have been harsh on the officers. It is clear that the observations of the High Court, seemingly vehement, and apparently unpalatable to the Revenue, are only intended to curb a tendency in revenue matters which, if allowed to beco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2479.035 MTs of the imported Palmolein was sold during the month of August, 2001. The importer also submitted copies of the credit invoices issued during the month of August, 2001. The quantity of the credit invoices tallies with the sales register. On verification of the cost break of the imported Palmolein, it is noticed that the total sales value of the subject imported goods during August, 2001 works out to ₹ 8,12,07,043/- and the sales cost of goods works out to 32,854/- per MT. The Assessable Value and the Duty of the disputed goods works out to ₹ 6,16,94,366/- and ₹ 24,959/- per MT without including the excess paid duty amount. The difference between the sales value and imported cost is ₹ 7895/- per MT which works out to 31.63% which is incidentals and profit. The importer has informed that profit and incidentals are normal only as per his e mail dated 24.01.2018. 9. Thus, it is clear that the petitioner has produced (i) copy of sales register which shows that a quantity of 2479.03 metric tonnes of the product was sold in August (ii) Credit invoices issued during the month of August 2001, tally with the sales register (iii) the cost break-up of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 27A.Interest on delayed refunds If any duty ordered to be refunded under sub-section (2) of section 27 to an applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section , there shall be paid to that applicant interest at such rate, not below 5% and not exceeding 30% per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty: Provided that where any duty, ordered to be refunded under subsection (2) of section 27 in respect of an application under subsection (1) of that section made before the date on which the Finance Bill, 1995 receives the assent of the President, is not refunded within three months from such date, there shall be paid to the applicant interest under this section from the date immediately after three months from such date, till the date of refund of such duty. 17. The provisions of Section 11B of the Central Excise Act that are in pari material with the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Indian National Ship Owners Association Vs. Union of India, [(2009) 13 STR 235] and had been struck down and the levy held to be unconstitutional till the enactment of Section 66A on 18.04.2006, that charged tax on a service recipient. The Court held that there was no authority to levy service tax on a service recipient that too by way of a Rule, in the absence of a charging provision. Such provision had been introduced only on 18.04.2006 and thus there would be no incidence of tax till 18.04.2006. The aforesaid decision was confirmed by the Supreme Court on 14.12.2009. 19. In those circumstances, I had held that where the collection of the tax is without the authority of law, then the refund of duty collected was also not bound by the rigour of any provision in that law and thus the provisions of Section 11B and the procedure set out therein would not stand attracted. Refund was thus, directed to be granted with interest from date of judgment of the Supreme Court, that is, from 14.12.2009 at the rate of 6 per cent per annum. 20. Reliance on this decision by the petitioner is of no avail in the light of the judgment in Mafatlal Industries Ltd. (supra) and the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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