Custom, Excise & Service Tax Tribunal
M/S. Veekay Prints Pvt. Ltd vs Commissioner Of Customs, Mumbai Ii on 23 June, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Appeal No. C/325/09 - Mum
(Arising out of Order-in-Appeal No. 406 (AC/CRC)/2008(JNCH) dated 26.12.2008 passed by the Commissioner of Customs (Appeals) Mumbai II).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Veekay Prints Pvt. Ltd.
:
Appellants
Versus
Commissioner of Customs, Mumbai II
Respondents
Appearance Shri Mihir H. Pathak, Advocate for Appellants Shri B.P. Pereira, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 23.06.10 Date of Decision : 23.06.10 ORDER NO.
Per : Ashok Jindal Heard both sides.
2. The appellant has preferred this appeal against the order passed by the authorities below holding that refund claim filed by the appellant is barred by limitation.
3. The facts of the case are that the appellant filed a Bill of Entry dated 17.05.2006 and paid duty accordingly. On realizing that 4% additional duty was not chargeable to them as the machine under import was imported under EPCG Scheme, they filed refund claim on 18.10.2010. The adjudicating authority rejected the refund claim as time barred holding that as per Section 27 (1)(b) of the Customs Act, 1962, refund claim has to be filed within a period of six months and the same was upheld by the Commissioner (Appeals). Against that order the appellant is before me.
4. The learned Advocate on behalf of the appellant submitted that in this case the duty has been paid by the appellant which was not payable by the appellant. Hence, the department should not have accepted the duty which was not leviable on the appellant. Hence, the time bar provision is not applicable on the appellant in the facts and circumstances of the case. To support this contention he placed reliance on Hind Agro Industries Ltd. vs. CC 2008 (221) ELT 336 (Del.) wherein the appellant paid the cess which was not payable by the appellant. On realizing that the appellant was not liable to pay the cess, the appellant filed the refund claim, but the refund claim was rejected holding that it was filed beyond the period of limitation under Section 27 of Customs Act, 1962. In these facts, the Honble High Court of Delhi has observed that there can be no doubt that the above provision applies to a claim for refund of any duty within the meaning of that Act. A word duty has been defined under Section 2(15) of the Act means, a duty of customs leviable under this Act. The entire Section 27 of the Act can, therefore, obviously apply if any only if, the refund that is being sought is of customs duty otherwise leviable under the Act.
5. Considering the fact as held by the Honble High Court of Delhi, provisions of Section 27 of the Act applies only when the refund that is being sought is of customs duty otherwise leviable under the Act. In this case I find that the appellant is claiming the refund of the 4% Addl. Duty paid which was not leviable on the appellant. Hence, the provision of Section 27 of the Act, which bound the appellant to file refund claim within six months of the assessment of the Bill of Entry, are not applicable to the case of the appellant. Accordingly, the impugned order is set aside. As observed in the impugned order that the refund claim has been dismissed being time barred and there is no findings has been given on merits, accordingly, I remand back the matter to the original adjudicating authority to pass an order after considering the claim of refund filed by the appellant on merit preferably within one month on the receipt of this order, needless to say after giving an opportunity of hearing to the appellant to present their case.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 3