Custom, Excise & Service Tax Tribunal
M/S Staunch Natural Resources Pvt. Ltd vs Commissioner Of Customs, Kandla on 20 June, 2016
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
Appeal No.C/10295/2015
[Arising out of OIA No.KDL-CUSTM-000-APP-369-14-15, dt.24.09.2014, passed by Commissioner of Customs (Appeals), Kandla]
M/s Staunch Natural Resources Pvt. Ltd. Appellant
Vs
Commissioner of Customs, Kandla Respondent
Represented by:
For Appellant: Shri S. C. Chaudhary, Advocate For Respondent: Dr. J. Nagori, A.R. (Additional Commissioner) For approval and signature:
Honble Dr. D.M. Misra, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No 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 of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision:20.06.2016 Order No.A/10525/2016, dt.20.06.2016 Per: Dr. D.M. Misra This is an appeal filed against OIA No.KDL-CUSTM-000-APP-369-14-15, dt.24.09.2014, passed by Commissioner of Customs (Appeals), Kandla]
2. Briefly stated the facts of the case are that the Appellant were exporter of Iron ore Fines and had filed a refund claim for Rs.1,45,39,200/- on 04.05.2013 on the ground that though they have paid export duty vide TR-6 Challan dt.05.12.2007 against the Shipping Bill No.6282271, dt.17.11.2011 for goods meant for export but the same could not be exported. The said refund claim was rejected by the adjudicating authority on the ground of limitation. Aggrieved by the said order, they have preferred an appeal before the learned Commissioner (Appeals), who in turn, had also rejected their appeal. Hence, the present appeal.
3. The learned Advocate submits that even though on payment of export duty, the Let Export Order (LEO) was received on 09.12.2011, but since they were not able to get any buyer, the shipment was delayed and they requested for cancellation of the shipping bill and for permission to file fresh shipping bill to export their goods. It is his contention that the shipping bill was allowed to be cancelled only on 23.01.2013 and they had filed the refund claim on 10.05.2013. It is his claim that since they filed the refund claim within six months from the date of cancellation of shipping bill, therefore, the refund claim is well within time. It is his further contention that if the amount paid by them be considered as deposit and not as duty, then, the time limit prescribed under Section 27 of Customs Act, 1962 would not be applicable to their case. In support, the learned Advocate refers to the judgment of Hon'ble Mumbai High Court in the case of Insurance Company of the USSR (INGOSSTRAKH) Ltd Vs U.O.I. 1989 (43) ELT 624 (Bom.), judgment of Hon'ble Delhi High Court in the case of United News of India Vs U.O.I. 2004 (168) ELT 442 (Del.), judgment of Hon'ble Bombay High Court in the case of Board of Trustees of the Port of Mormugao Vs U.O.I.- 1993 (68) ELT 39 (Bom), judgment of CESTAT Delhi in the case of Vimal Alloys Pvt. Ltd. Vs Commissioner of Customs, Amritsar 2011 (264) ELT 524 (Tri-Del).
3. Per contra, the learned Authorized Representative for the Revenue submits that the time limit for filing refund of Customs duty has been prescribed under Section 27 of Customs Act, 1962. It is his contention that the Appellant had paid the export duty on 05.12.2011, whereas the refund claim was filed only on 10.05.2013. Therefore, irrespective of the reasons, the said claim is barred by limitation prescribed under Section 27 of Customs Act, 1962. It is his contention that in view of the ratio laid down by the Constitutional Bench of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd Vs U.O.I. 1997 (89) ELT 247 (S.C.), the refunds arising out of the erroneous payment of export duty under the Customs Act,1962 ought to be governed by the provisions prescribed under the said Act. It is his contention that the Tribunal in the case of Sesa Goa Ltd Vs CC (Port), Kolkata 2016 (332) ELT 361 (Tri-Kolkata) and also the Calcutta High Court in the case of Vedanta Ltd Vs CC (Port) 2016 (332) ELT 284 (Cal.), in similar circumstances, rejected the contention of the Assessee and observed that the time limit prescribed under Section 27 of the Act is applicable in considering the refund of export duty.
4. We have carefully considered the submissions advanced by both sides.
5. Section 27 of the Customs Act, 1962 reads as follows:-
SECTION 27.?Claim for refund of duty. (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 person, other than the importer, shall be construed as the date of purchase of goods by such person.
(1A)?The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person.
(1B)?Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely :
(a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year shall be computed from the date of issue of such order;
(b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction;
(c) where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment.] (2)?If, on receipt of any such application, the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] is satisfied that the whole or any part of the [duty and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :
Provided that the amount of [duty and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -
(a) the [duty and interest, if any, paid on such duty] paid by the importer, [or the exporter, as the case may be] if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person;
(b) the [duty and interest, if any, paid on such duty] on imports made by an individual for his personal use;
(c) the [duty and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such [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 [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 :
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 [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 of the Appellate Tribunal [, National Tax Tribunal] or any Court or in any other provision of this Act or the regulations made there under or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).
(4)?Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.
(5)?For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.]
6. A plain reading of the aforesaid provision reveals that the period of limitation starts from the date of payment of duty. Exceptions are mentioned in the said provision viz. duty paid under protest, duty paid during provisional assessment, etc. In the present case, the duty has been finally assessed and paid by the Appellant following self assessment procedure on 05.12.2011 and Let Export Order was issued thereafter. Therefore, in view of the principle laid down by the Hon'ble Calcutta High Court in the case of Vedanta Ltd (supra), the period of limitation would start from the date of payment of duty i.e. 05.12.2011. Consequently, in our view, the refund claim filed by the Appellant on 10.05.2013 is beyond the time limit prescribed under Section 27 of the Customs Act, 1962 hence barred by limitation.
7. The contention of the learned Advocate that the export duty paid be considered as deposit is unacceptable being devoid of merit in view of the judgment of Constitutional Bench of Hon'ble Supreme Court in Mafatlal Industries case (supra). On the contrary, we find force in the contention of Ld. AR for the Revenue that the refund arising out of the duty paid erroneously under the Customs Act, 1962 ought to be governed by the provisions of the said Act in view of the principle of law laid down in Mafatlal Industries case. Consequently, the limitation prescribed under Section 27 of the Customs Act, 1962 is squarely applicable to the facts of the present case and case laws cited by the Appellant rendered prior to the judgment of Mafatlal Industries case cannot be made applicable to the present case.
8. In the result, the impugned order is upheld and the appeal is rejected.
(Dictated and pronounced in the open court)
(P.M. Saleem) (Dr. D.M. Misra)
Member (Technical) Member (Judicial)
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