TMI Blog2021 (4) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of Mafatlal Industries Ltd. [ 1996 (12) TMI 50 - SUPREME COURT] , it has been held that in order to claim excess duty paid, which falls outside the purview of the said Act of 1962, the limitation provided under Section 27 is not applicable. Hence, the appellant-company is certainly entitled for refund of duty. Thus, it is crystal clear that when the customs duty is paid in excess, the department is liable to refund the same and the limitation provided under Section 27 of the said Act of 1962 will not be applicable. Therefore, the Tribunal has erred in law and fact, solely relying on Section 27 of the said Act of 1962 while dismissing the application of the appellant-Company - this Court is of the considered opinion that the appellant was not at fault in the matter at all. M/s. BEML was directed to file refund application at the first instance. If the department would have advised the appellant to file an application for refund, then there would not have been any delay. The substantial questions of law are answered in favour of the appellant and against the revenue. - CSTA NO.5/2018 - - - Dated:- 5-3-2021 - HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... INR 0.033478 per KRW. The appellant- Company without noticing the said error, paid the duty and got the goods cleared. The original assessment has resulted in excess payment of customs duty to the tune of ₹ 42,26,975/-. 3. The appellant-Company supplied the said goods to M/s. BEML and raised a bill for payment of service charges as also refund of the duty of customs paid on behalf of the importer and that M/s. BEML verified the claim and pointed the appellant-Company that the duty of customs payable would have been ₹ 4,743/- and not ₹ 42,31,718/-. M/s. BEML, being the importer, filed a refund claim on 16.4.2009 and also furnished a copy of confirmation of exchange rate issued by Shinhan Bank, New Delhi Branch. The Superintendent (Refunds) of the respondent-department requested M/s. BEML to produce reassessed copy of the bill of entry vide letter dated 23.4.2009 and M/s. BEML, as importer, approached the Customs Authorities for rectification of error in the original bill of entry and for issue of reassessment bill of entry vide requisition dated 13.5.2009. The Customs Authorities directed the importer to file an appeal before the Commissioner of Customs (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed reply on 18.1.2012. The Adjudicating Authority rejected the application filed by M/s. BEML on the ground that it has neither paid the duty nor borne the same. It was also resolved that M/s. BEML has not even accounted duty of customs in the books of accounts as receivables. Accordingly, the Adjudicating Authority held that the doctrine of unjust enrichment is not fulfilled. The order in original was passed by the Adjudicating Authority (Assistant Commissioner) on 13.03.2012. 5. That after the order was passed in the case of M/s. BEML, the present appellant-Company filed another refund application on 6.5.2012 after getting information from M/s. BEML that they would not be inclined to pursue remedy. The refund application preferred by the appellant-Company was rejected on the ground that the duty of customs was paid on 7.3.2009, whereas the application for refund was received on 6.6.2012. It is therefore barred by limitation under Section 27 of the said Act of 1962. The present appellant-Company, being aggrieved by the order passed by the Adjudicating Authority, preferred an appeal before the Commissioner of Customs (Appeals) in Appeal No.163/2013 and contended that non fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of Section 27 of the Act. In support of his submission, the learned counsel for the appellant relied upon the following decisions: a) INA Bearings (India) Pvt. Ltd., Vs. CC (Import), Nhava Sheva- 2014 (313) E.L.T. 815 (Mumbai) b) Keshari Steels Vs. CC, Bombay- 2000 (115) E.L.T. 320 (Bom.) c) Collector V. Keshari Steels- 2000 (121) E.L.T. A139 (S.C) 5. On the other hand the learned defended the impugned order and submitted that the refund claim field by the appellant is clearly time-bared and therefore has been rightly rejected by both the authorities. He further submitted that the appellant filed the refund claim on 06.05.2012 after a lapse of about three years from the date of payment of duty. He further submitted that the reassessment was made on 30.12.2009 consequent to the issue of Order-in-Appeal dated 30.06.2009 passed by the Commissioner (Appeals). 6. After considering the submissions of both the parties and perusal of the impugned order, I find that in the present case, the appellants have filed the refund claim on 06.05.2012 whereas originally M/s. BEML filed the refund claim which was rejected by Assistant Commissioner vide his Order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricted to the time limit provided therein. The Hon ble Supreme Court upheld this decision by holding that there were no infirmities in the findings of this Tribunal. This was again reaffirmed by the Supreme Court in the Doaba Cooperative Sugar Mills case. In such circumstances, we are of the view that the only section for refund of the excess duty paid by the appellant, is Section 27 of the Customs Act, 1962 and there is no other provision providing for such refund by the Customs authorities. Section 154 speaks of only clerical or arithmetical directions. In such circumstances, the application for refund being beyond the time limit was rejected by the lower authorities. We also observe that merely because the Bill of Entry was corrected in view of Section 154 of the Customs Act, 1962, the refund cannot be granted beyond the period of limitation contemplated under Section 27 of the Customs Act, 1962 and there is no case made out to interfere with the orders passed by the learned Collector of Customs (Appeals). In the result, the appeal is rejected. Further I also find that the decision relied upon by the appellants are not applicable in the facts and circumstances of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he has supported the orders passed by the Authorities in the matter. 10. Heard the learned Counsel for the parties at length and perused the records. 11. In the present case, the undisputed facts reveal that the appellant-Company has carried out a shipment consignment on behalf of M/s. BEML. The appellant- Company, based upon the authorization of M/s. BEML, arranged for the customs clearance of imported consignment through its customs house agent M/s. Skyline Air Logistics Ltd. by submitting a bill of entry for paying the duty of customs. Unfortunately, on account of erroneous calculation based upon the details furnished by the Bank, duty of customs was paid to the tune of ₹ 42,31,718/- resulting in excess payment of ₹ 42,26,975/-. It has been admitted by the learned Counsel for the respondent that the aforesaid amount was paid on account of arithmetical error while computing liability. The excess amount was paid vide bill of entry dated 5.3.2009. The appellant-Company supplied the said goods to M/s. BEML and raised a bill for payment of service charges as also refund of the duty of customs paid on behalf of the importer and that M/s. BEML verified the claim a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dealt with in accordance with the provisions of sub-section (2): Provided further that the limitation of one year shall not apply where any duty or interest has been paid under protest: [Provided also that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded.] Explanation .--For the purposes of this sub-section, the date of payment of duty or interest in relation to a person, other than the importer, shall be construed as the date of purchase of goods by such person. (1-A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest, in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person. (1-B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely:- (a) in the case of goods which are exempt from payment of duty by a special order issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal, [National Tax Tribunal] or any Court or in any other provision of this Act or the regulations made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of Geojit BNP Paribhas Financial Services Ltd (supra), the Kerala High Court following the judgment of the Hon ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) has held as under; 28 8. .......... In this case, the levy was purely on account of mistake of fact in understanding the law. The Appellant assumed that the transaction for which he has paid tax, is covered under the law. The law does not cover such transaction for payment of service Tax. Therefore, it is not on account of any mistake of law but mistake of fact that the service tax was paid. In that view of the matter it has no colour of tax for the purposes of levy by the Department. The distinguishing feature for attracting the provisions under Section 11 B is that the levy should have the colour of validity when it was paid and only consequent upon interpretation of law or adjudication, the levy is liable to be ordered as refund. When payment was affected, if it has no colour of legality, Section 11 B is not attracted. This court is also of the view that levy is not in accordance with the provisions of the service tax and therefore such payment cannot be taken as a payment ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake of facts or under mistake of law or under both if any amount is deposited by the assessee, the same cannot be retained by Union of India and the one or the other pretext when a service provider is not liable to make the payment of service tax and if any payment is made, it cannot be covered under section 11 B of the Central Excise Act to be read with section 83 of the Finance Act, 1994. In the case of Joshi Technologies International (surpa), while considering the question of the refund claim of the Appellant being barred by limitation, the Gujarat High Court has held as under; 11. Since the machinery provisions of the Central Excise Act, 1944 have been incorporated in the OID Act and consequently the Education Cess and Secondary and Higher Secondary Education Cess had been paid to the Central Excise authorities, the Appellant was wholly justified in making the application for the refund to the second respondent. However, merely because the application is made to an authority under the Central Excise Act, the same would not lead to an inference that the application has been made under the provisions of the Central Excise Act, 1944 so as to make the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
