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TMI Blog2024 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... er CBEC clarification dated 28.06.2007. The clarification dated 28.06.2007 exempts the levy of CVD only the goods "Gum Arabic", whereas in the instant case, the goods imported by the applicant are Natural Gum (Natural Gum Siftings/ Natural Gum Rejected/ Natural Gum No. 3 rejected) and not the Gum Arabic. Along with the said Application in prescribed format, The appellants have submitted the documents such as copies of Bills of Entry generated though ICES and copies of Commercial invoices (Purchase invoices), Packing lists, Bills of lading and Duty paying documents (TR6/ Customs cyber Receipt pertains to e-payment). 1. After examining the refund claim and the documents there with, the department observed that Bills of Entry in questions were pertaining to the year 2011-12 to 2014-15 and the first and the last Bill of Entry was filed on 31.10.2011 and 24.09.2014 respectively. Hence, the refund claim was observed to have been filed after the expiry of one year from the date of payment of duty of Customs duty as Contrary to section 27 of the Customs Act, 1962. Also, No evidence was produced by the appellant to prove that they have not passed the burden of said amount of Customs duty ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed. 4. While rebutting these submissions learned DR has reiterated the findings arrived at by the Adjudicating Authority below. The decision of Supreme Court in ITC limited (Supra) is impressed upon as the law of land. It is submitted that irrespective appellant later had filed the protest letters but the fact remains is that appellant had self-assessed the amount of CVD i.e the amount in question. The self-assessment of Bill of Entry is also an order of assessment, As per Section 2(2) , as amended by the Finance Act, 2011, the definition of assessment includes self-assessment. Hence, the self-assessment also needs to be modified before claiming refund of any amount of duty, self-assessed and paid (As per ITC limited, Supra, Decision). With these submissions it is mentioned that there is no infirmity in the O-I-A when the refund claim of duty paid on unreviewed/ unmodified self-assessed Bill of Entry is rejected, also on the grounds of limitations as stipulated in Section 27 of the Customs Act and on the principle of "unjust enrichment". The order under challenge is accordingly prayed to be upheld and appeal is prayed to be allowed. 5. Having heard the rival contentions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s exempted only Imported "Gum Arabic" from levy of CVD The Bills of Entry in question have declared the imported goods as 'Natural Gums'. (Natural Gum siftings/ Natural Gum rejected/ Natural Gum No. 3 rejected) thus goods have not been declared as 'Gum Arabic to which the exemption from leviability of CVD is available vide clarification dt. 28.06.2002. No evidence has been produced to show that imported good was 'Natural Gum Arabic'. These observations are sufficient for us to hold with appellant has failed to establish its eligibility of claiming the benefit of exemption from payment of CVD in terms of CBEC clarification dated 28.06.2007. Thus, the CVD self-assessed has rightly been paid. No situation arise for refund of same. Question no 1, therefore, stands decided against the appellant. Question no 2 The refund of Customs duty is governed by section 27 of Customs Acts, 1962. As per said Section the refund application has to be filed before the expiry of one year from the date of payment of such duty or interest provided this period of limitation shall not apply where any duty or interest has been paid under protest. Though the appellant has taken the plea that protest was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 17(4). Section 128 has provided for an appeal not only against a speaking order but against "any order" which is of wide amplitude. 8. The reasoning employed by the said decision has recently been upheld by Hon'ble apex courts in its decision in case of ITC limited (Supra) wherein it is held as follows: Provisions of refund are more or less in nature of execution proceedings and thus are not open to Authority which processes refund to make fresh assessment on merits and to correct assessment on the basis of mistake or otherwise: Refund claim cannot be entertained unless taking recourse to the appropriate proceedings, not be within ken of section 27 of Customs Act, 1962, to set aside order of self-assessment and reassess duty for making refund. 'Any person' aggrieved by any order including self-assessment had to get order modified under Section 128 ibid or under other relevant provisions of Act. 9. In the present case apparently and admittedly the appellant has not modified the self-assessment vis-a-vis the impugned amount of CVD. Also, the claim is not covered under proviso to section 27 of the customs Act, 1962. Thus we hold the appellant is not entitled to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to refund of the illegally recovered tax, the judgment finally bids farewell to the time-honoured notion that the right to refund flows automatically as an absolute right from the mandates of Article 265 of the Constitution of India and Section 72 of the Indian Contract Act, 1872 and that it cannot be diluted or affected by any such equitable plea as "unjust enrichment", "passing on of burden" etc. The new judicial thesis instead rests on the principles of "economic and distributive justice" enshrined in the Preamble and the Directive Principles of State Policy. It also attaches significance to the unethical consequences which would flow and the fiscal and financial chaos which would follow if no bar of "unjust enrichment" is applied by the courts before ordering refunds. Article 265 and Section 72 should all be read and understood, says the majority view, in the light of "the philosophy and the core values of (the Indian) Constitution" and in keeping with "equity and good conscience". In the words of Jeevan Reddy, J., the State should refrain from conferring "an unearned and unjustifiable windfall" upon the assessees. 13. On the issue of remedies, all the three substantially conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situations and for what periods of limitation different remedies such as: (1) writ under Article 226 or Article 32 of the Constitution of India; or (2) civil suit under the Code of Civil Procedure; or (3) statutory application under the law concerned are expected to be available or unavailable to an assessee desirous of seeking refund of an illegally recovered tax. 15. The above discussed decision of Hon'ble Supreme Court are sufficient to clarify that seeking the refund is not a matter of right and the procedure as discussed in the decision has to be followed. In the present case, apparently none of the said procedure has been followed. infirmity in the same. We hold that the refund claim of appellant is not maintainable in the light of Mafatlal (supra) decision of Hon'ble High Court. 16. As a result of entire above discussion we hereby hold that the appellant is not eligible for the exemption from payment of CVD in terms of CBEC clarification dated 28.06.2007. The Refund claim is otherwise barred by time and by the principle of 'unjust enrichment' and can't be sanctioned in view of above discussed decisions of hon'ble Supreme Court. Hence, both the questioned framed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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