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TMI Blog2025 (5) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ers as this Hon'ble Court deems fit and proper in the facts and circumstances of the present case; (e) Dispense with the service of the advance notices upon the respondents. (f) Exempt the petitioner from filing the certified/original copies of documents Annexures with permission to place on record true typed/photocopies of the same. (g) Costs of the writ petition may also be awarded in favour of the petitioner." 2. The petitioner is a Company incorporated under the Companies Act and engaged in commercial Solar Projects. 3. The present writ petition has been filed challenging the Refund Rejection Order No. 23-24/2023-24/Refund dated 21.11.2023 issued by respondent No. 1. 4. Ms. Priyanka Rathi, learned counsel representing the petitioner submits that the respondents had erroneously rejected the refund of the interest claimed by the petitioner on the ground that such refund is not admissible, in light of the Customs (Waiver of Interest) Third Order, 2023, Order No. 03/2023-Customs (NT) dated 17.04.2023 ("Customs Order") read with Section 27 of the Customs Act, 1962 (hereinafter referred to as "the Act of 1962"). 4.1 Learned counsel further submits that Section 27 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... large extent had been substantially resolved by 13.04.2023. 4.8 Learned counsel further submits that the language of the order clearly indicates that when the notification dated 17.04.2023 was issued regarding technical difficulties on the Common Portal with authorized Banks, these technical issues had not been fully resolved. 4.9 Learned counsel also submits that once the bill of entries were returned, the necessary payments were made in accordance with the aforementioned notifications read in conjunction with Section 47 of the Act of 1962, and thus, the waiver of interest ought to have been granted. 4.10 Learned counsel further submits that any difficulty in processing the payment due to technical glitches on the part of the respondents cannot be attributed to the petitioner for the purpose of levying interest. 4.11 Learned counsel has highlighted from the order dated 17.04.2023 that the waiver contained in the order was to be given effect from the date when system inability at the Common Portal was resolved, as certified by the Director General of Systems (for short 'D.G. Systems') and the same shall also be governed by Section 27 of the Act of 1962. 4.12 Learned counsel ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nability was fully resolved. 5.2 Learned counsel contends that since the bill of entry, on which, the duty payment for the specific bill of entry was initiated after 13.04.2023 (on 20.04.2023), therefore, the order in question will not help the petitioner. 5.3 Learned counsel further submits that the circular dated 17.04.2023 was only applicable for the interest payable under 47 (2) of the Act of 1962 for the period from 01.04.2023 upto and including 13.04.2023 in respect of such goods where the payment of import duty was to be made from the amount available in ECL. 5.4 Learned counsel also submits that Section 47 (2) of the Act of 1962, stipulates that once the bill of entry is returned and the payment has to be made within one day, as prescribed under Section Section 47 of the Act of 1962. 6. Heard learned counsel for the parties at length as well as perused the material available on record. 7. This Court finds that the petitioner being a Company and an importer was seeking a refund claim under the Customs (Waiver of Interest) Third Order, 2023, Order No. 03/2023-Customs (NT) dated 17.04.2023. The petitioner filed the bill of entry and then deposited the import duty against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 of the Act of 1962 is reproduced hereunder: "[27. Claim for refund of duty.-3[(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 Customs, before the expiry of one year, from the date of payment of such duty or interest: Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such application shall be deemed to have been made under sub-section (1), as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [duty and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such 1[duty and interest, if any, paid on such duty] to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the 1[duty and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify; [(g) the duty paid in excess by the importer before an order permitting clearance of goods for home consumption is made where- (i) such excess payment of duty is evident from the bill of entry in the case of self-assessed bill of entry; or (ii) the duty actually payable is reflected in the reassessed bill of entry in the case of reassessment:] Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of 1[duty and interest, if any, paid on such duty] has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in this Order shall be given effect if the following conditions are fulfilled: (a) the duty and interest has been paid within 3 days (including holidays) from the date of removal of such system inability at the Common Portal, which shall be certified by the DG Systems. (b) the importer undertakes at the port of import to not pass on the incidence of such interest paid; and (c) the provisions of section 27 of Customs Act 1962 shall govern the consequential refund of such interest paid." 13. This Court finds that the advisory issued by the D.G. Systems which is the backbone of the determination of the date of the technical glitches which would be there in the implementation of the ECL facility, which require the D.G. Systems to pronounce and certify the same. 14. This Court has also perused the advisory issued on 27.07.2023 by the D.G. Systems, in which, the advisory for operationalisation of the Customs (Waiver of Interest) Third Order, 2023 dated 17.04.2023 and consequential regularization of electronic bill of entry in the case of manual Out of Charge (OOC) given in the wake of glitches in the implementation of ECL facility since 01.04.2023 has been prescribed. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tches were existing till 27.07.2023. 16. This Court observes that provision of law under Section 47 of the Act of 1962 clearly provides for payment of import duty by the importer on the date of presentation of the bill of entry in case of self assessment and within one day (excluding holidays) from the date on which the bill of entry is returned to him by the proper officer for payment of duty in the case of assessment, reassessment or provisional assessment. 17. In this case, the petitioner has been able to demonstrate that bill of entry had been returned on 19.04.2023 whereas within 24 hours, a genuine effort to make the necessary payments vide Annexure-8 were made and in pursuance of bill of entries, the necessary payments were forwarded to the concerned Bank, which is reflected in Annexure-8. 18. This Court finds that the order dated 17.04.2023 acknowledged the technical difficulties to have been resolved only to a large extent, but not entirely. The order dated 17.04.2023 itself stipulates the requirement of waiver of the interest as per the certification given by the D.G. Systems regarding the duty and interest from the date of removal of such system inability at the Commo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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