TMI Blog2023 (3) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for refund can be allowed on the satisfaction of the Assistant Commissioner of Customs and which according to the respondent Customs authority, in this case, has not been fulfilled which is established from the fact that memos were issued pointing out the deficiencies and the petitioner has responded to those memos of deficiencies in the applications for refund, under the aforesaid Act. Considering all the relevant provisions of Section 27 (1), 27(2), 27A of the Customs Act, 1962, and Regulation 2 along with Explanation under Regulations 2(3) of the Customs Refund Application (Form) Regulations Act, 1995, that the petitioner is not entitled to get interest on the refund on all those applications submitted by the petitioner making claim of refund, where memo of deficiencies were issued and after compliance of such memo of deficiencies refund has been made within the time prescribed under the statute and petitioner will be entitled to get interest only in those cases in which even after responding and compliance to deficiencies of memos and submitting the requisitioned documents, refund has been made by the respondent authorities beyond the time prescribed under the statute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under 27A of the aforesaid Act. The defective application is to be returned as prescribed under the aforesaid Regulation. The refund claim by the petitioner is based on appellate orders in question. By virtue of deeming fiction provided in Explanation to Section 27A of the aforesaid Act and appellate orders in question are to be treated as refund orders under Section 27 (2) of the Act. The assessing authority is to execute the order and the respondent concerned has no discretion left to consider refund under Section 27 (1) and (2) of the Act and the proceeding before him is only ministerial, according to the petitioner and query after 7-9 months of receipt of the applications are not deficiency and that the respondents are reading extension provision of time to run interest in Section 27A of the Act which is not there. Petitioner submits that since the respondents have retained the refundable amount for a prolonged period and had unjust gain at the cost of the petitioner it should be made liable to pay interest on interest as damages in the same line as of Sandvic Asia Vs- Commissioner of Income Tax 196 ELT 273 as there is no provision under Customs Act. Such prayer is abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that the Explanation appended to Regulation 2 of the Customs Refund Application (Form) Regulations, 1995, makes it crystal clear that unless an application for refund is filed with all requisite documents the same cannot be treated as a complete application and that even if it assumed but not admitting that the authority has issued the deficiency memo beyond the prescribed period but the moment the petitioner has replied to the said deficiency memo, the petitioner has waived its right to challenge the same and cannot raise any dispute at this belated stage. Furthermore, in the instant case, according to the respondents, in most of the refund applications filed by the petitioner were incomplete due to non submission of relevant documents and as such for delay in submission of requisite/relevant documents on the part of the petitioner, the respondent department cannot be saddled with liability for payment of interest. Learned Advocate appearing for the respondents submit that the decision of the Hon ble Supreme Court in the case of Ranbaxy Laboratories Ltd. (supra) relied upon by the petitioner is distinguishable factually and is not applicable to the present case. In the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no deficiency memo was issued to the petitioner and as such the said case is factually distinguishable and it has no manner of application in the facts and circumstances of the present case. Learned Advocate appearing for the respondents in support of justification for denial of interest on refund by the respondent customs authority, relies on the following judgments: (i) Commissioner of Customs, Mangaluru Customs Vs- JSW Steel Limited reported in 2022 (379) ELT 451 (Kar.), on the proposition of law that no interest is payable under Section 27A of the Customs Act, 1962, on the refund claim when the refund has been sanctioned within the prescribed period of three months from the date of receipt of all requisite documents along with refund application. (ii) JSW Steel Limited Vs- Commissioner of Customs, Mangaluru Customs reported in 2022 (381) ELT 443 (SC), the Hon ble Supreme Court upholding the aforesaid order of the Hon ble Karnataka High Court in the case of JSW Limited dismissed the Special Leave Petition of the assessee. Before reaching to the conclusion on the issue of claim of interest by the petitioner, involve in this writ petition, some relevant S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ete, the Proper Officer shall, within ten working days of its receipt, return the application to the applicant, pointing out the deficiencies. The applicant may resubmit the application after making good the deficiencies, for scrutiny. Explanation . For the purposes of payment of interest under Section 27A of the Act, the application shall be deemed to have been received on the date on which a complete application, as acknowledged by the Proper Officer, has been made. Considering the facts and circumstances of the case as appears from record, relevant provisions of law, submissions and judgments relied upon by both the parties, I am inclined to dispose of this writ petition by holding as follows: (i) The claim of the petitioner under Section 27A of the Customs Act, 1962, for the alleged delayed refunds cannot be granted for the reason that the Section 27A of the aforesaid Act provides the condition that a person is entitled for the refund on receipt of application under Section 27(1) of the Customs Act, and on fulfilling the conditions under Section 27 (1) of the aforesaid Act which in this case is not admitted and is highly disputed as to whether the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents which is apparent from record since after receipt of such applications, deficiencies memos were issued and even the petitioner have responded to the said deficiencies memos and as such it is not a clearly admitted and undisputed case of submission of the applications in complete Forms in all respect for refund in question and since the case of the respondents Customs authority is that only on the date of receipt of the refund applications in complete Form and manner along with requisitioned documents refund has been made on the basis of all such Forms within the statutory period, question of claim of interest on account of delay on such refund does not arise at all. (vi) I am of the considered view that only in those cases where no memos of deficiencies have been issued or pointed out to the petitioner in such applications and admittedly payment for refund has been delayed beyond the statutory period on such application for refund, in such cases petitioner is entitled to get interest on delayed refund for the period from the date of expiry of statutory period till the date of actual payment of refund. (vii) I am of the considered view, after considering al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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