Custom, Excise & Service Tax Tribunal
M/S. Sesa Goa Ltd vs Commr. Of Customs (Port) Kolkata on 18 March, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
CUSTOMS APPEAL NO.C/91/10
(ARISING OUT OF ORDER-IN-APPEAL NO.KOL/CUS/CKP/05/10 DATED-11/01/2010 PASSED BY COMMISSIONER OF CUSTOMS (APPEALS), KOLKATA)
FOR APPROVAL AND SIGNATURES OF
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
DR. I.P.LAL, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see :
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 :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities?
M/s. SESA GOA Ltd.
APPLICANT/APPELLANT COMMISSIONER
VERSUS
Commr. of Customs (Port) Kolkata
...RESPONDENT (S)
APPEARANCE:
Shri Mukesh Laddha, C.A. Assisted by Ms. Sneha Arya, A.C.A. FOR THE REVENUE.
Sri A.K. Das , Spl. Counsel FOR THE RESPONDENT(S). CORAM:
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER Date of Hearing & Decision:18.03.2015 ORDER NO.FO/A/75196/2015 Per Dr. D.M. Misra This is an appeal filed against order-in-appeal No. KOL/CUS/CKP/05/10 DATED-11/01/2010.
2. Briefly stated the facts of the case are that the appellants are engaged in the export of Iron Ore Fines. They have filed six shipping bills between August, 2007 and April, 2008. It is their claim that they have paid excess export duty as there was short shipment of export goods. Consequently, they filed refund claims on 28th August, 2008 and 29/10/2008, admittedly, after six months from the date of payment of duty. The refund claims were rejected on the ground of time bar. Aggrieved, the appellant preferred an appeal before the Ld. Commissioner (Appeals) without any success. Hence, the present appeal.
3. The Ld. Advocate submits that even though they were not required to pay duty on the short shipment of export goods, but erroneously, the same was paid. It is his submission that therefore, the amount collected as duty does not satisfy the definition of duty prescribed under Section 2(15) of the Customs Act, 1962. Accordingly, the said amount erroneously collected ought to have been sanctioned as refund to them even if the claims are filed after the prescribed period of six months. In support, he has referred to various case laws on the subject.
4. Per contra, the Ld. Special Counsel Shri A.K. Das for the Revenue submitted that the duty has been paid initially and later claimed as refund on account of short shipment of goods exported, therefore, refund claim ought to have been filed within the time limit prescribed under Section 27 of the Customs Act, 1962.He submits that any refund arising out of excess payment of duty under the Customs Act, ought to be governed by the Provisions contained for refund in the Customs Act, 1962. He submits that this Tribunal being creature of the the statute, therefore, cannot travel beyond the statute. He further submits that in view of the judgment of the Honble Supreme Court, relied upon by the Ld. Commissioner (Appeal), in Mafatlal Industries Ltd. Vs. Union of India reported in 1997 (89) ELT 247 (SC) , the refund is barred by limitation.
5. Heard both sides and perused the records. We find that the Ld. Commissioner(Appeals) has recorded a categorical finding in relation to the plea of the Appellant that what have been collected from them satisfy the definition of duty as prescribed under Section 2(15) of the Customs Act, 1962, hence the refund of the same is governed by the provisions of the Customs Act,1962. He has observed that since it is not a case of collection of duty under the provision of law declared later as ultra vires, hence the provisions of Section 27 of Customs Act, 1962 is applicable to the present refund claims in view of the principle of law settled by the Honble Supreme Court in Mafatlal Industries case (supra). We do not find any infirmity in the impugned order. Consequently, the appeal filed by the appellant being devoid of merit, accordingly, the same is dismissed.
(Operative part of the order already pronounced in the court.)
Sd/- 06/04/15 Sd/- 31/3/2015
(I.P.LAL) (D.M.MISRA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
K.B/-
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CUSTOMS APPEAL NOs.C/91/10
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