TMI Blog2021 (4) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... s unsustainable in law and fact, the contention is rejected. Time Limitation as per Section 27 of the Customs Act, 1962 - HELD THAT:- From a bare reading of Section 27, it is clear that Section 27 deals with refund of duty/interest. We have read the definition of 'duty' to ascertain whether 'duty' in any situation includes redemption fine and penalty as well. The definition of word 'duty' does not give an indication to the said effect. In other words, according to definition in Section 2(15) of Customs Act, 1962, 'duty' means duty leviable under the Act. Section 27, in our considered view, does not Customs Appeal No.3/2018 deal with a claim for redemption fine and penalty. The said contention is unsustainable and accordingly rejected. The next argument is that the Tribunal through orders dated 08.12.1988 and 01.03.1995 did not direct refund of redemption fine and penalty to the respondent - HELD THAT:- Had it been a case where the redemption fine and penalty are set aside, different considerations apply. Here is a case where the matter has been remitted to the primary authority for fresh decision. With a view to continuing to collect or dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applicable, has moved the goods from the Customs area. The Collector of Customs, upon remand, on 30.05.1991 levied penalty of ₹ 40 lakhs under Section 112 of the Customs Act, on the ground that the consignment has been removed from the customs area and goods not available for Customs Appeal No.3/2018 confiscation. The respondent filed Appeal No.C/602/91/MAS and the Tribunal by order No.190/1995 dated 01.03.1995 ordered the appeal and held as follows: 4. We have considered the submissions made before us. The short issue before us is about the appellant's liability to penalty and the quantum thereof based on relevant criteria in accordance with law in the facts and circumstances of the case under the Act. We note that for actually working out the profit margin the duty on the warehousing bond interest paid/payable and likewise other expenses incurred should be taken note of before arriving at the quantum of the profit. We further note that the appellant's appeal remains dismissed by the Special Bench by Order No.C/91 92/92- D, dated 04.03.1992, a copy of which has been produced before us. Therefore, without expressing any opinion on the merits of the issue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not barred by the limitation prescribed therein. Therefore, an application for refund of redemption fine and penalty could be made at any time or any number of times. The respondent, after lapse of 17 years, on the basis of a CESTAT order made on 01.03.1995, is claiming refund of redemption fine and penalty. The first reason to refuse the claim for refund is that the order dated 01.03.1995 of CESTAT does not direct the refund authority for sanctioning the amount claimed by the applicant. The claim is unsupported by original documents. The want of original documents is a substantial reason. Therefore, the request of refund Customs Appeal No.3/2018 is treated as incomplete, insufficient, unsubstantiated, and accordingly rejected. The respondent, aggrieved by the order in Annexure-A, filed appeal before the Commissioner of Customs (Appeals). Through order in Annexure B the Commissioner accepted the explanation/reply of the respondent that the originals are misplaced, however, the copies of Register of Cash/Deposit Miscellaneous receipts for date 28.11.1998 have been produced as proof of payment of redemption fine and penalty. The Commissioner of Customs (Appeals) accepted the said se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en accepted as sufficient for processing the claim of refund. The Department, if was desirous of challenging the said finding ought to have maintained an appeal before the CESTAT. Having not pursued the remedy against anything recorded on the proof now produced by the respondent, the ground that the refund Customs Appeal No.3/2018 claim is made without supporting documents is unsustainable in law and fact, the contention is rejected. 7.1 The next argument refers to Section 27 of the Customs Act, 1962. According to Advocate for appellant, Section 27 is attracted to the case on hand, the claim for refund could not be made beyond one year from the date on which the amount is paid or as is applicable while reading Section 27. The argument on limitation presupposes that Section 27 is squarely applicable to the case on hand. Section 27 deals with refund of duty paid, and reads thus: 27. Claim for refund of duty.-- [(1) Any person claiming refund of any duty or interest, -- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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