At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
By, THE HONORABLE JUSTICE: S.S. GARG
For Petitioner: B. Venugopal, Advocate And For Respondents: J. Harish, Deputy Commissioner, A.R.
1. The present appeal has been filed against the impugned order dated 28.02.2013/06.03.2013 passed by the Commissioner of Customs (Appeals) wherein the appeal of the appellant is rejected. Briefly the facts of the present case are that the appellants had filed a claim for refund of excess duty paid amounting to Rs. 42,26,975/- (Rupees Forty Two Lakhs Twenty Six Thousand Nine Hundred and Seventy Five only) paid by them on behalf of M/s. BEML, Bangalore for an import cargo clearance made vide Bill of Entry No. 984004 dated 05.03.2009 through ACC, Bangalore on 06.05.2012. The claim was rejected by the lower adjudicating authority vide the Order-in-Original No. 587/2012 (AC-Refunds) dated 09.10.2012, stating that the same is time-barred and that required documents were not furnished by the appellants. The brief back ground of the refund claim is that there was a clerical error in the application of exchange rate which resulted in arriving at the wrong assessable value and payment of excess duty. The appellants approached the authorities for rectification of error and reassessment of Bill of Entry. The appellants were advised to approach the Commissioner of Customs (Appeals) for obtaining direction for reassessment. Accordingly an appeal was filed by the appellants before the Commissioner of Customs (Appeals) which was allowed vide order bearing OIA No. 62/2009 dated 30.06.2009 with a direction for reassessment so that appellants can file a refund claim. Subsequently, the Assistant Commissioner of Customs issued a certificate dated 30.12.2009 indicating the correct details of the subject Bill of Entry. This certificate was issued in lieu of amendment of Bill of Entry. In the meanwhile the importers M/s. BEML, Bangalore had filed a refund claim on 16.04.2009 for Rs. 42,26,975/- (Rupees Forty Two Lakhs Twenty Six Thousand Nine Hundred and Seventy Five only) being the duty paid in excess on account of wrong adoption of exchange rates. However, the refund claim was rejected by the Assistant Commissioner of Customs by an order bearing Order-in-Original No. 100/2012 dated 13.03.2012 on the ground that M/s. BEML, Bangalore had neither paid nor borne the duty and also had not accounted the said amount as 'receivables' in their books of accounts. It was also held that the refund cannot even be sanctioned to the appellants i.e. DHL Express (India) Pvt. Ltd. as they are not the claimants of refund claim and that refund cannot be considered for sanction to a person unless a claim for refund in proper form with all required documents is filed by such person who has either paid or borne the duty. Therefore, the appellants filed refund cliam on 06.05.2012 in the prescribed format which came to be rejected. Aggrieved by the order of rejection, the appellant filed the appeal before the Commissioner (Appeals) who rejected the appeal of the appellant and hence the present appeal.
2. Heard both the parties and perused the records.
3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and circumstances and the position of law. He further submitted that the appellants have furnished all the documents which were required for claiming the refund. He further submitted that the appellants are the agents of M/s. BEML who are the importers and the owners of the goods and the duty was paid by them on behalf of M/s. BEML as their agent. He also submitted that the appellants are well within their right to file the refund of excess duty in terms of Section 27 of the Customs Act, 1962. He further submitted that once amendment to the Bill of Entry is permitted the excess duty is liable to be refunded without an application for refund under Section 27 of the Customs Act. He also submitted that the excess duty paid on account of clerical error is only a deposit and not the duty and therefore the provisions of Section 27 of the Customs Act are not applicable. He also submitted that BEML had also filed a refund application on 16.04.2009 but their claim was rejected on 13.03.2012 on the ground that they have neither paid the duty nor borne the duty in terms of Section 27 of the Act. In support of his submission, the learned counsel for the appellant relied upon the following decisions:
a) INA Bearings (India) Pvt. Ltd. Vs. CC (Import), Nhava Sheva - 2014 (313) E.L.T. 815 (Mumbai)
b) Keshari Steels Vs. CC, Bombay : 2000 (115) E.L.T. 320 (Bom.)
c) Collector V. Keshari Steels - 2000 (121) E.L.T. A139 (S.C)
4. On the other hand the learned defended the impugned order and submitted that the refund claim filed by the appellant is clearly time-bared and therefore has been rightly rejected by both the authorities. He further submitted that the appellant filed the refund claim on 06.05.2012 after a lapse of about three years from the date of payment of duty. He further submitted that the reassessment was made on 30.12.2009 consequent to the issue of Order-in-Appeal dated 30.06.2009 passed by the Commissioner (Appeals).
5. After considering the submissions of both the parties and perusal of the impugned order, I find that in the present case, the appellants have filed the refund claim on 06.05.2012 whereas originally M/s. BEML filed the refund claim which was rejected by Assistant Commissioner vide his Order-in-Original dated 13.03.2012 on the ground that BEML has neither paid the duty nor borne the duty. I also find that after the rejection of refund claim by BEML, M/s. BEML has not filed appeal against the Order-in-Original but appellant has filed the refund claim on 06.05.2012 whereas re-assessment was made on 30.12.2009 which according to me is barred by Section 27. Further I also find that as per Section 27 of the Customs Act, the time for filing the refund claim has to be strictly followed and the argument of the learned counsel for the appellant saying that it was only a deposit and not the duty is not tenable in law. I also find that the learned Commissioner (Appeals) has considered all the decisions relied upon by the appellant and has rightly come to the conclusion that the time limit as prescribed under Section 27 of the Customs Act is applicable in the present case. Further the learned Commissioner has observed that the present case is covered by the decision of the Tribunal in the case of Minerals & Metals Trading Corporation of India Vs. CC reported in : 1993 (66) E.L.T. 89 and the relevant para is reproduced herein below:
"9. Section 154 only mentions about corrections of clerical and arithmetical error and it does not mention about the consequential relief of refund of those amounts which accrued due to the above-said corrections. The Supreme Court has also held in the Doaba Cooperative Sugar Mills' case that if the payment of duty was made under a mistake of law the appellant may seek recourse to such an alternative remedy. In this case, even though the payment of duty is due to arithmetical or clerical mistake, still the only provision for refund under the Customs Act is Section 27 of the Customs Act, 1962 and there is no other provision providing for a refund by the Customs authorities under the abovementioned Act. In such cases, the parties filing refund applications have to be regulated and restricted to the time limit provided under the Act. The Supreme Court has upheld the decision of this Tribunal reported in : 1983 (13) E.L.T. 1026 in the case of Miles India Ltd. v. Appellate Collector of Customs. It was held in that decision by the Tribunal that any claim filed before the Customs authorities for refund of the excise duty has to be treated under Section 27 of the Customs Act because there is no other provision providing for application for refund before the Customs authorities and the parties filing such refund claim are to be regulated and restricted to the time limit provided therein. The hon'ble Supreme Court upheld this decision by holding that there were no infirmities in the findings of this Tribunal. This was again reaffirmed by the Supreme Court in the Doaba Cooperative Sugar Mills' case. In such circumstances, we are of the view that the only section for refund of the excess duty paid by the appellant, is Section 27 of the Customs Act, 1962 and there is no other provisi
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on providing for such refund by the Customs authorities. Section 154 speaks of only clerical or arithmetical directions. In such circumstances, the application for refund being beyond the time limit was rejected by the lower authorities. We also observe that merely because the Bill of Entry was corrected in view of Section 154 of the Customs Act, 1962, the refund cannot be granted beyond the period of limitation contemplated under Section 27 of the Customs Act, 1962.and there is no case made out to interfere with the orders passed by the learned Collector of Customs (Appeals). In the result, the appeal is rejected." Further I also find that the decision relied upon by the appellants are not applicable in the facts and circumstances of this case and are distinguishable. In view of my discussion above, I find no infirmity in the impugned order which is upheld by dismissing the appeal of the appellant.