TMI Blog2021 (8) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... uent thereof - Petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 2239 of 2019 - - - Dated:- 28-7-2021 - HONOURABLE MR. JUSTICE A.J. DESAI AND HONOURABLE DR. JUSTICE A. P. THAKER Appearance: Mr. Dhaval Shah (2354) for the Petitioner(s) No. 1 Notice Unserved (8) for the Respondent(s) No. 1 Priyank P Lodha (7852) for the Respondent(s) No. 2,3 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE A.J. DESAI) Mr. Priyank Lodha, learned advocate waives service of Rule on behalf of respondent Nos.2 3. Since the pleadings are completed, with the consent of learned advocates appearing for the respective parties, the petition is taken up for hearing today. By way of the present petition under Articles 226 of the Constitution of India, the petitioner has prayed to issue a writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India, to quash and set aside the impugned communication F.No.S/6-Misc./Ref/2017-18 dated 31.01.2018 issued by the Respondent No.2 and Communication F.No.S/6-Misc./Refund/2017-18 dated 18.10.2018 issued by the respondent No.3, by which, the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- towards customs duty for the goods imported by him on 12/04/2016, however by mistake, additional amount of ₹ 17,25,172/was paid again on 12/04/2016 along with custom duty with regard to another consignment imported by the petitioner. The petitioner was suppose to pay customs duty to the tune of ₹ 77,82,771/- only. However, through oversight and bonafide mistake, he added an amount of ₹ 17,25,172/-, which was already paid on 11/04/2016 for another consignment. He would further submit that this additional amount paid is not a duty paid in excess or claiming any benefits under any other head, as provided under the Customs law. It is merely a mistake committed by the petitioner in paying the duty for the same goods on two occasions and therefore, it cannot be treated as duty as referred under section 27 of the Act and therefore, limitation would not be applicable. He would submit that the authority cannot withheld the amount, which was paid merely by mistake by the petitioner and therefore, the authority may be directed to refund the amount with interest. In support of his submissions, he has relied upon following decisions : (i) Swastik Sanitarywares Ltd. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 27 of the Act, the limitation would be applicable. He would submit that it is the case of the petitioner that excess payment is made on 12/04/2016, however, he has made an application after a period of more than one year and therefore, the authority has rightly denied the refund application. Learned advocate Mr.Priyank Lodha has relied upon Public Notice No.15/2015 dated 12/08/2015 issued at the instance of the Commissioner of Customs, New Delhi and has submitted that even in case of double/ multiple amount of customs duty is paid, section 27 of the Customs Act,1962 would be applicable and therefore, it is presumed that the petitioner was aware that he was supposed to file an application within a period of one year and therefore, he would submit that this petition may be rejected. He would submit that the petitioner would not be entitled for any interest in view of the fact that he was not entitled for any refund, which has been rightly held by the authority and therefore, this petition may be dismissed. In support of his submissions, he has relied upon the decision rendered in the case of Joshi Technologies International (Supra). We have heard learned advocates appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (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. We are in agreement with the submissions made by Mr.Shah that the amount of ₹ 17,25,172/-, which was paid on second day i.e. on 12/04/2016 was not paid towards any custom duty but the amount again paid, which is already paid on earlier date i.e. on 11/04/2016 and therefore, it cannot be treated as duty and therefore, in our opinion, an excess amount paid by the petitioner, which the authority is not entitled to retain and needs to be refunded to the petitioner. In the case of Swastik Sanitaryware (supra), this aspect with regard to similar provision under Excise Act, has been dealt with in Para-17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjustment of the duty already paid by the petitioner towards the same liability. (14) Under the circumstances, we are of the opinion that the department cannot withhold such amount which the petitioner rightfully claimed. Under the circumstances, question of applying limitation under section 11B of the Act would not arise since we hold that retention of such service tax would be without any authority of law. We are also in agreement of the observation made in Para-15 of the said judgement and therefore, we are of the opinion that the petitioner would be entitled for refund of the excess amount paid towards duty i.e. ₹ 17,25,172/-. As far as observations made in the decision of Swastik Sanitary wares Ltd. (supra) with regard to claiming such refund within reasonable time is concerned, it is an undisputed fact that the application was made in less than two years from the date of payment of customs duty and therefore, decision rendered by coordinate bench of this Court in the case of M/s.Comsol Energy Private Limited (supra) would come into play. The same issue has been dealt with by Division Bench of this Court in the case of M/s.Comsol Energy Private Limited (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is only sometime after the Education Cess and Secondary and Higher Secondary Education Cess came to be paid for the month of April 2014 that the petitioner came to know about its mistake and in July 2014, it filed the application for refund before the second respondent. Since the period of limitation begins to run only from the time when the applicant comes to know of the mistake, the application made by the petitioner was well within the prescribed period of limitation. Moreover, as discussed hereinabove, the retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law and hence, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under section 11B of the CE Act would not arise. 19 *** TO SUMMARISE:- -Merely because the provisions of the Central Excise Act, 1944 and the rules framed thereunder for collection and refund viz., the machinery provisions have been incorporated in the OID Act for collection and refund of the cess levied thereunder, it cannot be inferred that the Oil Cess imposed under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mistake, the application made by the petitioner was well within the prescribed period of limitation. Moreover, since the very retention of the Education Cess and Secondary and Higher Secondary Education Cess by the respondents is without authority of law, in the light of the decision of this court in Swastik Sanitarywares Ltd. v. Union of India (supra), the question of applying the limitation prescribed under section 11B of the CE Act would not arise. -Even in case where any amount is paid by wayof self assessment, in the event any amount has been paid by mistake or through ignorance, it is always open to the assessee to bring it to the notice of the authority concerned and claim refund of the amount wrongly paid. The authority concerned is also duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since the Education Cess and Secondary and Higher Secondary Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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