Madras High Court
Commissioner Of Customs vs M/S. Spic Ltd on 12 December, 2014
Bench: R.Sudhakar, R.Karuppiah
In the High Court of Judicature at Madras
Dated: 12.12.2014
Coram
The Honourable Mr.JUSTICE R.SUDHAKAR
and
The Honourable Mr.JUSTICE R.KARUPPIAH
Civil Miscellaneous Appeal No.2166 of 2008
Commissioner of Customs,
Customs House,
Chennai-600 001. .... Appellant
Vs.
1. M/s. SPIC Ltd., Spic House (97),
No.88, Mount Road,
Guindy, Chennai - 600 032.
2. Customs, Excise & Service Tax Appellate Tribunal,
South Zonal Bench, Shastri Bhawan Annexe,
1st Floor, 26, Haddows Road,
Chennai - 600 006. .... Respondent
APPEAL under Section 130 of the Customs Act against the order dated 09.11.2006 made in Final Order No.1037/2006 on the file of the Customs, Excise and Service Tax Appellate Tribunal, Chennai.
For Appellant : Mr.E.Vijay Anand
For Respondent : Mr.S.Murugappan - R1
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J U D G M E N T
(Delivered by R.SUDHAKAR,J.) This Civil Miscellaneous Appeal filed as against the order of the Customs, Excise and Service Tax Appellate Tribunal was admitted by this Court on the following substantial questions of law:
1. Whether the claim made by the first respondent for refund after an expiry of seven years in violation of the time limit fixed under Section 27(1) of the Customs Act, 1962 can be considered by the second respondent appellate Tribunal as a valid claim under the provisions of the Customs Act?
2. Whether the impugned order passed by the Customs, Excise and Service Tax Appellate Tribunal dated 10.11.2006 allowing the claim for refund of the first respondent after the expiry of seven years, contrary to the time limit fixed by the Section 27(1) of the Customs Act, 1962, is maintainable inlaw?
2. The brief facts of the case are as follows:
The respondent has filed two refund applications dated 26.10.1990 and 02.04.1991 seeking refund of excess duty paid and the same were dismissed by the Original Authority on 30.7.1992 and 14.12.1995 respectively. As against the said orders, two appeals have been filed before the Commissioner (Appeals), who passed orders in favour of the claimant by orders dated 14.6.1993 and 30.10.1996 respectively. Thereafter, at the behest of the Department (as stated in the order of the Tribunal), the respondent had again filed two separate refund applications, both dated 14.8.2000. The said applications were rejected by the Original Authority on 09.03.2004 and 13.3.2004 stating that the said applications have been filed belatedly. As against this order of the Original Authority, further appeals have been filed before the Commissioner (Appeals), who dismissed the appeals by order dated 31.8.2004, thereby confirmed the second rejection order of the Original Authority. Aggrieved by such an order, the respondent went before the Tribunal, which allowed the appeal by order dated 10.11.2006. Aggrieved by the said order of the Tribunal, the Revenue is before this Court raising the above-mentioned substantial questions of law.
3. Heard learned Standing counsel appearing for the appellant and learned counsel appearing for the respondent.
4. We have perused the order of the Tribunal. We find that at the relevant point of time, there is no provision as pointed out by the Department to say that on an order passed by the Commissioner (Appeals) in favour of the claimant, another application for refund is required to be filed.
5. In this regard, it is relevant to extract the reasoning of the Tribunal, which is as follows:
"10. In para 100 of the Mafatlal Industries Ltd. judgement, the Supreme Court had directed that in respect of claims which had been pending in suits/writ appeals, the concerned petitioners should file refund claims within 60 days of pronouncement of the judgement in that case. In the instant case, the appellants had received favourable orders vide orders in Appeal dated 14.6.93 and 30.10.96. Subject claims had not been pending in any proceeding before any court at the time when the Hon'ble Supreme Court pronounced the judgement. What the Hon'ble Supreme Court ordered in para 100 extracted above is in respect of claims involved in pending Writ petitions/Writ appeals/suits. Therefore, it cannot be said that the subject claims are governed by the directions of the Apex Court referred to above. In the Kerala State Electricity Board's case, the Kerala High Court dismissed the petition filed by the Kerala State Electricity Board for the reason that they had not complied with this direction of the Hon'ble Supreme Court and ordered that their only recourse was to approach the Hon'ble Supreme Court. In both the cases relied on in the impugned order, the appellants had not filed claims as per Section 11B of the Central Excise Act. In case of the present appellants they had filed refund claims in accordance with law. Section 11B, either before the amendment or after the amendment does not envisage that the assessee should file fresh refund application following a successful appeal/revision proceedings by the parties. Once a refund claim is filed, before the concerned authority, as has been done by the appellants in the present case, statutory requirement in this regard has been complied with by the claimant seeking refund under the Act. Refund application need not be made at each stage if the initial claim before the Assistant/Deputy Commissioner is not successful. The law laid down by the Apex Court in the Mafatlal Industries' Ltd is that all refund claims including those made pursuant to an order in appeal/revision were subject to provisions of Section 11B of the Central Excise Act/Section 27 of the Customs Act. I am therefore, of the considered view that the appellants are eligible for the refund amounts claimed. Their claims shall be allowed after scrutiny also from the angle of unjust enrichment as ordered by the Commissioner (Appeals). Accordingly, I allow both the appeals.
6. When there is no provision for filing a second refund application, the question of limitation does not arise. Further, the time limit under Section 27(1) of the Customs Act would be for the first application and the appeal is a continuation of the original proceedings and therefore there can be no limitation in respect of the proceedings pursuing the refund claim. Accordingly, both the questions of law are answered in favour of the assessee and against the Revenue.
7. In the result, the order of the Tribunal stands confirmed and this Civil Miscellaneous Appeal stands dismissed. No costs.
Index :Yes/No (R.S.,J) (R.K.,J)
Internet:Yes/No 12.12.2014
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To
The Customs, Excise and Service Tax Appellate Tribunal, Chennai.
R.SUDHAKAR,J.
AND
R.KARUPPIAH,J.
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C.M.A.No.2166 of 2008
12.12.2014