Gujarat High Court
M/S Petronet Lng Limited vs Assistant Commissioner Of Customs ... on 26 December, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A. P. Thaker
C/SCA/5190/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5190 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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M/S PETRONET LNG LIMITED
Versus
ASSISTANT COMMISSIONER OF CUSTOMS CUSTOMS DIVISION
================================================================
Appearance:
MR MAULIK NANAVATI WITH MR SUJIT GHOSH WITH MR. NANVI
DHANLE WITH MR MANNOT WARAICH WITH MR ABHISHEK SHARMA
FOR NANAVATI AND CO.(7105) for the Petitioner
MR NIRZAR S DESAI(2117) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 26/12/2019
ORAL JUDGMENT
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C/SCA/5190/2019 JUDGMENT (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Heard learned counsel for the parties.
2. The petitioner - appellant in Appeal No. C-10488/2017-DB in the Customs, Central Excise and Service Tax Appellate Tribunal, has approached this Court by way of this petition under Articles 226 and 227 of the Constitution of India with following prayers :
a) Issue a writ of Certiorari, a writ in the nature of Certiorari or any other writ, order or direction as the Court deems fit for quashing Order No.A/11614/2018 dated 01.08.2018 passed by the Hon'ble Customs, Central Excise and Service Tax Appellate Tribunal, Ahmedabad and accordingly hold that the amount deposited with the Customs authorities ought to be refunded to the petitioner.
b) Issue a writ of Mandamus, a writ in the nature of Mandamus or any other writ, order or direction as the Court deems fit directing the Department to refund the amount of Rs.9,59,27,605/- along with interest to the petitioner.
c) Pass an ad-interim order for staying order No. A/11614/2018 dated 01.08.2018 passed by the Hon'ble Customs, Central Excise and Service Tax Appellate Tribunal, Ahmedabad pending the hearing and final disposal of this Special Civil Application.
d) Pass any other consequential Writ, Order or Direction as the Court deem fit."
Page 2 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021C/SCA/5190/2019 JUDGMENT Thus, what is essentially under challenge in this petition is the dismissal of the Appeal filed by petitioner challenging the order dated 2.1.2017 rejecting the claim of petitioner for refund, as prayed therein, on the ground that provisions of Section 27 of the Customs Act, would operate and the claim of refund was time barred.
3. The learned counsel for the petitioner initially made elaborate submissions on the fact that as the contention of the petitioner that the duty was attracted only on the actual landed quantity of material and not on the quantity shown in the bill of landing, was upheld the refund of difference was not required to be treated as duty, so as to attract the limitation under Section 27 of the Customs Act. The learned counsel also cited various decisions in support of his submission and in alternative pleaded that in any case the application for refund itself was made on 8.8.2015 and received stamp thereon is affixed thereon on 9.9.2015, it can well be said that it was within prescribed statutory limitation under Section 27 as the final order of CESTAT dated 4.12.2013 was received by the petitioner on 29.9.2014 and the written application was made on 8.9.2015, which was based stamping on 9.9.2015. Hence, it can be said to be well within time. The learned counsel for the respondent also contended that the section 27 was attracted even for the claim of refund of difference in duty and in view of the judgment of Supreme Court in case of Mafatlal Industries Ltd and others Vs. Union of India and others, reported in (1997) 5 SCC 536, followed by this court, was not permissible to be raised outside the purview of Section 27 of the Customs Act. The counsel for the petitioner thereafter expressly confided his submission qua the refund application being in time and urged the Court that the submission canvassed on behalf of the petitioner for supporting the Page 3 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT claim of the petitioner that the refund application was within time only be considered to be submission and rest of the submission qua non-applicability or non-applicability of the limitation thereunder on the basis of the contention that the refund was not for the duty paid, are not pressed into service and petition is confined only on the ground that the refund application of the petitioner was well within the prescribed period of limitation under Section 27 of the Customs Act.
4. The facts in brief as could be gathered from the memo of the petition and impugned orders, shorn off unnecessary details required for deciding the controversy in question on the basis of the arguments canvassed to support the contention that the refund application was within limitation prescribed under Section 27 of the Customs Act, deserves to be set out as under.
4.1 The petitioner is engaged in the business of importing and distributing Liquified Natural Gas (LNG) in India. In certain exigencies, the petitioner imports LNG from different suppliers on Delivered Ex-ship (DES) basis or on Cost & Freight (C&F) basis.
4.2 The petition contains that the contractor raised a provisional invoice on the basis of quantity of LNG loaded at the port of dispatch. During voyage, the vessels consume the LNG loaded on them as fuel. Thus, the quantity of LNG loaded on them as fuel. Thus, the quantity of LNG received and unladed in India is lower than the quantity loaded at the port of dispatch. The Contractors raise a final invoice basis the quantity actually unloaded in India. Thus, the value of LNG mentioned in the final invoice is the actual price paid or payable by the Page 4 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT petitioner to the contractors for import of LNG and is therefore, the transaction value for the import of LNG by the petitioner.
4.3 The petition contains that an the basis of the bill of lading quantity, the petitioner, approached the customs authorities for finalization and contended that customs duty was payable only on the quantity of the LNG landed in India and not on the quantity mentioned in the bills of landing. The said contention was rejected by respondent no. 1, vide order dtd 24.6.2013, however, the same was subsequently reversed by respondent no. 2, who held that as the quantity discharged at the port of discharge is less than the quantity loaded, the petitioner was entitled to refund of customs duty. On appeal by the Department, the Tribunal rejected the appeal and upheld the order.
4.4 The petition contains that when the petitioner sought to claim a refund of the amount, the respondent no.1 issued a show cause notice dated 3.11.2015 alleging that the refund application was filed on 9.9.2015, after the expiry more than one year from 4.12.2013, which was the date of the order of the Commissioner (Appeals) and is thereby liable to be rejected under Section 27 of the Customs Act, 1962. The respondent no. 1 adjudicated the show cause notice and rejected the refund claim amounting to Rs.9,59,27,205/- filed by the petitioner vide Order-in-Original No. 85/AC/SRT/REFUND/2015 dtd 4.12.2015. This position was affirmed by the respondent no. 2 vide Order-in-Appeal No. AHD-CUSTOM-000-APP-064-16-17 dtd 2.1.2017 and the Tribunal vide its order No. A/11614/2018 dated 1.8.2018 rejected the claim of refund of petitioner. The petitioner has assailed said order dated 1.8.2018 by preferring Page 5 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT present petition under Articles 226 and 227 of Constitution of India.
4.5 The application for refund said to have been filed on 8.8.2015 but it bears the stamp of receipt of 9.9.2015 and therefore, that date needs to be taken into consideration for reckoning the period of limitation.
5. Learned counsel for the petitioner, as it is stated hereinabove, advanced at length various points but he submitted that the petition be confined only on his contention that the petitioner's claim for refund was justified and admissible as his application dated 8.8.2015 said to have been received on 9.9.2015, was well within the period of limitation prescribed under Section 27 of the Customs Act. The counsel for the petitioner submitted that the contention of the petitioner for the leviable of custom duty only on the actual quantity of landing of the goods and not on the basis of the quantity mentioned in the bill of landing was accepted by the Commissioner (Appeal) on 4.12.2013 but that order itself could not be said to have been concluding the issue or dispute so as to trigger of the point of limitation. In fact the Commissioner of Customs (Appeal) did uphold the contention of the petitioner but that order was amenable to be challenged in Appeal proceeding before the CESTAT and in fact the department did file an appeal before the Tribunal challenging the order of Commissioner (Appeal) dated 4.12.2013 and therefore, there was no justification for the department to insist that the period of limitation would start running from 4.12.2013 i.e. the date of order when the respondent no.2 upheld the contention of petitioner.
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6. The counsel for the petitioner further submitted that it was not open to the department to contend that the period of limitation would start running from 4.12.2013 when the department itself had challenged the same before the Tribunal i.e. CESTAT by way of Appeal and when the order of the Appellate Commissioner dated 4.12.2013 was being considered on merits by the CESTAT, it goes without saying the claim of refund based thereupon could not have been proceeded by the respondent. The non-existence of any stay order against the order of the Appellate Commissioner dated 4.12.2013 also would not be a ground for contending that the claim of refund would start running from 4.12.2013, as the appeal proceedings before the CESTAT could not be ignored by all the concerned.
7. The learned counsel appearing for the petitioner further submitted that the CESTAT unfortunately did not appreciate the ratio of the decision rendered by the Supreme Court in case of Dena Snuff (P) Ltd., Vs. Commissioner of Central Excise, Chandigarh, reported in 2003 (157) ELT 500 (S.C), as rather the ratio and observation of the Supreme Court would support the case of the petitioner that the claim of refund could be said to have been accrued only on final conclusion by the CESTAT of the dispute in its order dated 8.9.2014 and thereafter when the order was received by the petitioner. The CESTAT though referred to the decision of Supreme Court in case of Dena Snuff (supra) did not appreciate the real ratio laid down in the judgment and therefore, to that extent the order of the Tribunal dated 1.8.2018 is untenable in eye of law.
8. The learned counsel for the petitioner also contended that the factual aspect as obtained in the case would clearly go to show that the application for refund dated 8.8.2015 made by the petitioner and bearing the stamp of receipt of 9.9.2015, could be said to be Page 7 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT application made within prescribed time under Section 27 of the Customs Act as prior to the receipt of the order of the Tribunal dated 4.12.2013, it would not have been possible for the petitioner to successfully raise the claim of refund.
9. Learned counsel for the petitioner has relied upon the decision in case of Vikas Global One Ltd Vs. Commissioner of Customs, Nhava Sheva, reported in 2014 (302) ELT 272 (Tri.-Mumbai), contending that pendency of the matter before the Tribunal can as well be said to be a dispute pending and therefore, as observed by the Tribunal, the dispute could not be said to have been settled when the provision of appeal is available and the appeal is preferred. The claim of refund would be considered only when the order settling the dispute finally between the parties attains finality when neither party challenges the same.
10. The learned counsel for the petitioner invited this Court's attention to the observation made in case of Shakun Overseas Ltd Vs. Commissioner of Cus. (Appeals), Chennai, reported in 2013 (297) ELT 14 (Mad.), and relied upon para-13, 14 and 15, which are reproduced hereinbelow for ready reference :
[13] As already noted in the preceding paragraph, on the Writ Petitions filed before this Court, the first order of the Tribunal dated 01.08.1997 was set aside by this Court and the matter was restored to the CEGAT for de novo consideration and only thereafter, in the year 1999, the Tribunal accepted the case of the assessees on valuation and allowed the assessees' appeals. Thus, in stricto senso, the claim for refund would arise only from 1999 and not before. It is no doubt true that the assessees made applications for refund consequent on their appeals being allowed Page 8 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT by the Collector of Customs (Appeals). But then, when the matter was taken on appeal by the Revenue, the assessees can validly lay their claim only in the year 2001 when after the order of this Court setting aside the order of the Tribunal, the Tribunal dismissed the Revenue's appeals. Thus reading Section 27A of the Customs Act on the application made validly by the assessees on 24.10.2001, the said applications thus having got to be disposed of within a period of three months from the date of receipt of such applications, the question of interest payable on the belated refund would have to be governed by the provisions under Section 27 and 27A of the Customs Act. As is evident from the reading of Section 27A of the Customs Act, if the authority does not dispose of the application within a period of three months, Section 27A would come into play and the assessee would be entitled to interest not less than 15% and not exceeding 30% per annum, as fixed by the Central Government by notification on the official gazette from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. It is a matter of relevance that on the dismissal of the assessees' claim by the Tribunal dated 01.08.1997, wherein the Tribunal allowed the Revenue's appeal in the first round of litigation, the claim by the assessee could not be said to be alive for all practical purposes. It is only after the order of the Tribunal dated 17.03.1999 dismissing the Revenue's appeal that the right of the assessees to claim refund could surface.
[14] Going by the clear provisions available under Section 27A of the Customs Act, we hold that the assessees would be entitled to interest on the expiry of three months from the date of receipt of the application to the date of refund of such duty and on no Page 9 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT account they would be entitled to interest on the amount paid under protest from the date of payment, as had been claimed by them. We also make it clear that the refund claim could be validly held to be made only on the disposal of the appeals by the Tribunal and not any date prior to that, which means, the date on which the order was passed by Collector of Customs (Appeals) would not be of relevance for the purpose of limitation.
[15] In this connection, the provisions of the Central Excise Act, 1944, viz., Section 11B, which relates to the claim of refund of excise duty, needs to be seen. A reading of the said provision shows that any person claiming refund of excess duty and interest paid on such duty has to make an application for refund before the expiry of one year from the relevant date. The relevant date is defined under Clause (B) to Explanation to Section 11B of the Central Excise Act.
to support his contention that pendency of the matter before the competent forum can be said to be a dispute pending and therefore, a very technical stand that the claim of refund could be said to have been accrued on the appellate Commissioner's order dated 4.12.2013 itself when there was no stay, or prohibitory order against operation of the said order in the Appeal preferred by the Department.
11. The learned counsel for the petitioner invited Court's attention to the provision of Section 131A and 153 of the Customs Act to support his contention that the law provided for service of order decision etc. and the order to become effective have to be served upon the party and exclusion of time taken for receiving the copy of order. Based thereupon counsel for the petitioner Page 10 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT contended that the order dated 8.9.2014 could be said to be effective only when it was received by the petitioner on 29.9.2014 and the refund application preferred within 1 year therefrom could be said to be well within the time prescribed under Section 27 of the Customs Act.
12. In support of this contentions counsel relied upon the decision of this Court in case of Vadilal Industries Ltd Vs. Union of India, reported in 2006 (197) ELT 160, with greater emphasis upon the observations, which are in fact also adverting to the facts, which would appear to be self-explanatory without any further probing, which deserve to be set out as under :
"para- 11: Therefore, the fact that the order remained unserved on the petitioner is not in dispute, though on behalf of the respondents an attempt was made to contend that, in these circumstances, due to lapse on part of the petitioner it had not received the order and this could not be equated with non-service of the order.
According to the learned counsel, it must be taken that the Registry of CESTAT having taken the necessary steps in accordance with the requirement of law to effect service nothing further was required to be done by the said authority, and therefore, the ROM Application had been rightly held to be barred by limitation, and hence there was no scope for any intervention.
Para-12 : Under Section 37C of the Act a provision is made prescribing the mode of service of any decision or order, any summons or notice issued under the Act or the rules made thereunder. Under clause (a) of Page 11 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT Section 37 C of the Act it is laid down that the decision, order etc. should be sent by Registered Post with acknowledgment due ; in the case of failure to effect service in the mode prescribed under clause (a), clause (b) stipulates that the same shall be done by affixing a copy thereof to some conspicuous part of the factory etc ; and lastly, in the event of failure to effect service by the mode prescribed under clause (b), clause (c) provides that the service be effected by affixing a copy thereof on the notice board of the officer or authority who or which made the order etc. Under sub section (2) of Section 37 C of the Act, a statutory presumption is provided wherein it is laid down that the service will be deemed to have been effected if the decision, order etc. is tendered or delivered by post or a copy thereof is affixed in the manner laid down in sub section (1) of Section 37C of the Act.
Para-13 : In the present case, the Registry of the Tribunal has categorically averred that it had sought to effect the service in the manner laid down in section 37 C (1)
(a) of the Act and the envelope had been returned unserved. Therefore, the Registered Post had not been acknowledged. Thereupon, it became necessary for the authority to effect service in the mode prescribed under Section 37 C (1) (b) of the Act, and in the event of non-service by the said manner, by the mode prescribed under clause (c ) of sub Section (1) of Section 37 C of the Act. It is not even the case of respondent No.2 that it had sought to effect service and had effected service in any of the modes prescribed under clauses (b) and (c) of sub Section (1) of Section 37 C of the Act.Page 12 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021
C/SCA/5190/2019 JUDGMENT In the circumstances, the averment made on oath by the petitioner that a copy of the order was not served on the petitioner, remains unrebutted."
13.Learned counsel for the respondents invited this Court's attention to the definition of Section 27 of the Act and contended that in absence of any prohibitory order from any Court or Appellate Authority, mere pendency of the proceedings before the Tribunal or Appellate Forum in itself would not have any effect of long getting or extending the period for filing refund claim. In the instant case, the order of the Appellate Commissioner dated 4.12.2013 had already been passed under which the claim for refund could have been led, though revenue's appeal challenging the same before the Tribunal was pending but there was no stay order granted against the order and hence, mere consideration of the appeal before the Tribunal, would not have been taken to be a grant for extending the period prescribed under Section 27 of the Act.
14. Learned counsel for the respondent submitted that as the learned counsel for the petitioner has expressly given up the contention that the refund claim of the petitioner would not be governed by the limitation under Section 27 on account of non attractability of limitation, so far as the nature of refund is concerned and even otherwise also it is said to have been paid under protest, he also does not press into service the decision of this Court, wherein, one of us (Hon'ble Mr. Justice S.R. Brahmbhatt) is party, rendered in Special Civil Application No. 10435 of 2018 dated 4.9.2019, as the issue in the present case is only whether the claim for refund was filed within the time limit prescribed or not.Page 13 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021
C/SCA/5190/2019 JUDGMENT
15. Learned counsel appearing for the respondent further submitted that the refund claim is not required to be granted on two counts namely - that the claim for refund said to have arisen when the Appellate Commissioner passed an order on 4.12.2013 in favour of petitioner. Apart therefrom, the language of Section 27 also would persuade this Court to hold that time limit would start from the date of order and it cannot be said that the time limit will start running from the date of receipt of the order, else it would amount to accepting all and any other grounds to be pressed into service for extending the limitation prescribed under Section 27.
16.Learned counsel appearing for respondent heavily relied upon the decision of Tribunal to justify his contention qua denial of refund and prays for dismissal of the petition.
17.This Court has heard learned counsels for the parties and perused the papers. The following indisputable aspects emerged therefrom which deserve to be set out as under :
a) 24.06.2013 : Assistant Commissioner finalized 17 BoEs and held that duty is payable as per the quantity mentioned in the Bill of Lading and not the quantity actually imported into India;
b) 04.12.2013 : Commissioner (Appeals) quashed the order passed by the Assistant Commissioner and allowed the appeal of the petitioner.
c) 08.09.2014 : CESTAT, Ahmedabad dismissed the appeal filed by the Department against the order of the Commissioner (Appeals).
d) 29.09.2014 : Receipt of the order of the CESTAT by the petitioner.Page 14 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021
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e) 27.02.2015 : Letter issued by the Superintendent acknowledging the order of CESTAT.
f) 08.08.2015 : Petitioner vide letter informed the Deputy Commissioner about the order of CESRAR and sought refund of customs duty amounting INR 9,59,27,205/-. As a precautionary measure, petitioner filed formal refund application along with the aforementioned letter.
09.09.2015, that is the date mentioned in the stamp placed on the application by the department.
g) 03.11.2015 : Instead of refunding the amount as sought by the petitioner, the Assistant Commissioner issued show cause notice alleging that refund is liable to be rejected on the ground that the refund application has been filed on 9.9.2015 i.e. after the expiry of one year from the date of the order passed by the Commissioner (Appeals).
h) 30.11.2015 : Reply filed by the petitioner in response to the show cause notice.
i) 04.12.2015 : Assistant Commissioner rejected the refund claim vide order dtd 4.12.2015 on the ground that the refund is time barred.
j) 31.01.2016 : Against aforesaid order, petitioner preferred an appeal before the Commissioner (Appeals)
k) 02.01.2017 : Commissioner (Appeals) rejected the appeal of petitioner and held that refund is time barred.
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l) 01.08.2018 : CESTAT, Ahmedabad dismissed the Appeal filed by the petitioner against the order of Commissioner (Appeals).
In view of aforesaid almost indisputable aspects, we are to consider the rival contentions of the parties.
18. The provisions of Section 27 of the Customs Act, 1962 reads as under :
Section 27: Claim for refund of duty -
1. xxx xxx xxx (1A) xxx xxx xxx 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."
19. In the instant case, it is true that Appellate Commissioner rendered its decision in favour of petitioner on 4.12.2013 and one can say that the petitioner was entitled to seek refund based thereupon. However, it deserves to be noted that the appeal challenging the said order was preferred by the Department before Page 16 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT the CESTAT and CESTAT rendered its decision on 8.9.2014. The said order dated 8.9.2014 was received by the petitioner, as per say of petitioner and it has not been disputed, on 29.9.2014. Therefore, within one year therefrom, the refund claim was made on 9.9.2015. Though the actual date of application is 8.8.2015 but the receipt stamp indicates the date of 9.9.2015 and accordingly, it was said to have filed within the time limit prescribed. The decision cited at bar on behalf of the petitioner and it has been adverted to by the Tribunal while considering the claim of petitioner deserve to be appreciated in light of aforesaid indisputable facts.
20. The counsel for the petitioner cited the decision of Supreme Court in case of Dena Snuff (P) Ltd., Vs. Commissioner of Central Excise, Chandigarh, reported in 2003 (157) ELT 500 (S.C) and relied emphasis upon the discussion of para-5 thereof, which is required to be reproduce as under, to indicate that the claim of refund is to be from the final decision in the assessee's own case. :
"para-5: As far as the first submission is concerned, we are of the view that the Tribunal's appreciation of the relevant paragraph in Mafatlal Industries (supra) was correct. The "cause of action" of the appellant would arise only after the final dispute regarding the classification list had been settled by this Court. That was done as recently as on 28-8-2003. The application for refund by the appellant was therefore premature. We have noted the proviso to Sub-section (1) of Section 11(B) which says that the period of limitation of one year prescribed under subsection (1) will not apply in case duties are paid under protest.Page 17 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021
C/SCA/5190/2019 JUDGMENT The question then is from which date will the period of limitation start to run? It appears on the basis of the paragraph of Mafatlal Industries decision which has been relied upon by the Tribunal it would have to be from the final decision in the assessee's own case.
The entire controversy and decision rendered thereunder, based upon the earlier judgment of the Apex Court in case of Mafatlal Industries Ltd and others Vs. Union of India and others, reported in (1997) 5 SCC 536, unfortunately appears to have been not appreciated by the Tribunal, else, it would not have been a case treating the petitioner's application for refund being time barred. It is required to be noted that in fact the ratio of the judgment in case of Dena Snuff (supra) so far as it provides for claim of refund in a case of assessee is on the basis of the finality of the issue in the case of that assessee himself would rather support the case of the petitioner as in a case of present petitioner. The order rendered by the Appellate Commissioner on 4.12.2013 could not be said to have rested the controversy as the department itself had chosen to prefer an appeal challenging the same sand therefore, till the Tribunal rendered its judgment on 8.9.2014, and the order was received by the petitioner, it can be said that the claim of the petitioner for refund could not have been said to have been finally decided by the Court or Tribunal so as entitled him to raise the refund claim.
21. The counsel for the petitioner has invited this Court's attention to the provisions of Sections 131A and 153 of the Act, which read as under :
Page 18 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021C/SCA/5190/2019 JUDGMENT Section 131A of the Customs Act, 1962:
"131A- Exclusion of time taken for copy. --In computing the period of limitation specified for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order shall be excluded."
Section 153 in the Customs Act, 1962:
"153: Service of order,r decision etc. : Any order or decision passed or any summons or notice issued under this Act, shall be served -
(a) By tendering the order, decision, summons or notice or sending it by registered post or by such courier as may be approved by the Commissioner of Customs;
(b) If any order, decision, summons of notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house."
The plain and simple reading of these two provisions in light of the decision rendered by this Court in case of Vadilal Industries Vs. Union of India, reported in 2006 (197) ELT 160 would clearly indicate that the petitioner's claim of refund raised on 8.8.2015 and said to be received on 9.9.2015, could be said to be well within time under section 27 of the Customs Act. The section 131A of the customs Act is a provision based upon the general principle of law and equity, which clearly indicate that the order to be made Page 19 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT effective, has to be served upon the party affected thereby, and therefore, the time taken in serving the order is obviously required to be excluded from the period prescribed for limitation and on basis of this clear analogy supported by provision of law, if one takes into consideration the provision of Section 27(1B)(b) of the Customs Act, then, there would not be any room for any doubt that the limitation would start from the date of the receipt of the order. It is required to be noted that the Tribunal rendered its order upholding the order of the Appellate Commissioner on 8.9.2014 that order was received by the petitioner on 29.9.2014 and the petitioner made application for refund on 8.8.2015, though the department has affixed the stamp on the application of 9.9.2015, and therefore, it can well be said that claim of the refund was well within one year from the date of the order holding finality that the petitioner was entitled for refund, on the basis of its contention that the duty was to be leviable only on the quantity that landed.
22. We are of the considered view that when the petitioner's claim that it was not liable to pay duty on the quantum mentioned in the bill of landing as the actual quantity landed was lesser than the quantity mentioned in the bill of landing, was justified and upheld the difference in duty levied, was required to be refunded, the quantity which actual landed, was the duty on quantity laded and therefore, the petitioner's contention was upheld by the Appellate Commissioner under it's order dated 4.12.2013 and c onfirmed by the CESTAT under its order dated 8.,09.2014. Therefore, there was no justified reason whatsoever for denying the refund to the petitioner. Even otherwise also the withholding of refund amount was not justified in any manner especially when the undisputed facts mentioned hereinabove would clearly indicate that the Tribunal upheld the claim of the petitioner only on 8.9.2014 Page 20 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021 C/SCA/5190/2019 JUDGMENT and that being the date of attaching finality to the petitioner's entitlement to seek refund, the petitioner was well within its right to approach the authority for seeking refund as prescribed under Section 27 of the Customs Act. The stand of the Authority and Tribunal that the petitioner's claim for refund could have been said to have been filed within a period of one year from the 4.12.2013 was therefore wholly erroneous, incorrect and deserves to be quashed and set aside and is accordingly, quashed and set aside.
23. As a result of the aforesaid discussion, we hold that the petitioner is entitled to receive refund as per his claim contained in his application dated 8.8.2015 in accordance with law and the same shall be granted to the petitioner within a period of four (4) months from the date of receipt of writ of this Court. At this stage, learned counsel for the respondent requests for staying of this order. We are of the view that the Court has granted four months time to process the claim of the petitioner and during that period, if the respondent chooses to challenge the order, they may do so. The request for staying of this order is rejected.
24. With aforesaid observations, petition is disposed of. Rule is made absolute to aforesaid extent.
(S.R.BRAHMBHATT, J) (A. P. THAKER, J) P.S. JOSHI Page 21 of 21 Downloaded on : Mon Mar 08 20:15:30 IST 2021