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J.K. Industries V/S C.C., Jamnagar

    Appeal No. C/11570/2017 (Arising out of OIA-JMN-CUSTM-000-APP-015-17-18 dt. 11/05/2017 passed by the Commissioner (Appeals) Commissioner of Central Excise, Customs and Service Tax-Ahmedabad) and Order No. A/10225/2018

    Decided On, 31 January 2018

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad

    By, THE HONORABLE JUSTICE: DR. D.M. MISRA
    By, MEMBER

    For Respondents: Nitina Nagori, Authorised Representative



Judgment Text


1. None present for the appellant.

2. This is an appeal filed by the appellant against OIA-JMN-CUSTM-000-APP-015-17-18 passed by the Commissioner (Appeals) of Central Excise, Customs and Service Tax-AHMEDABAD.

3. A written submission has been filed by the appellant requesting to dispense with their presence on the scheduled date of hearing and decide the case on the basis of record.

4. Heard Ld. AR for the Revenue.

5. The short issue involved in the present appeal is whether the appellant are entitled to refund of customs duty paid against respective Bills of Entry which was finally assessed on 22.2.2014. The refund claim was rejected on the ground that since the appellant had not filed appeal against

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the assessment order, therefore, the refund claim filed under Sec. 27 of the Customs Act, 1962 is not maintainable. The appellant in the written submission has submitted that subsequent to the amendment to Section 27 of the Customs Act, 1962 for claiming refund of duty paid, the assessment order need not be challenged. In support, he has referred to the Hon'ble Delhi High Courts judgment in the case of Micromax Informatics Ltd. vs. UOI : 2016 (335) ELT. 446 (Del) and the judgment of this Tribunal in the case of AG Enterprise vs. Commissioner of Customs, Jamnagar vide Final Order No. A/13548-13549/2017 dt 20.11.2017.

6. The Ld. AR for the Revenue reiterated the findings of the Ld. commissioner (Appeals) and referred to the judgment of this Tribunal in the case of Indian Potash Ltd. vs. CC, Kandla: 2016 (339) ELT. 140 (Tri. Ahmd) and Sopariwal Exports vs. CC Kandla vide Final Order No. A/10682/2017 dt 31.3.2017 and CC(Appeals) vs. ACE Designers : 2015 (329) ELT. 109 (Mad.).

7. I find that the present issue relates to refund of Customs duty paid during the course of provisional assessment of the Bills of Entry, which on finalization became due to them. The period involved in the present case is after 1.4.2011. Needles to mention, the relevant provision governing refund of Customs duty i.e., Sec. 27 has been amended with effect from 1.4.2011. The amended provision is reproduced as below:

27. Claim for refund of duty. - (1) Any person claiming refund of any duty or interest,-

(i) paid by him; or

(ii) borne by him,

may make an application in such form and manner as may be prescribed for such refund of 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) ....

(1B)....

(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.

8. Hon'ble Delhi High Court had an occasion to interpret the amended provision in Micromax Informatics Ltd. (supra) case. After analysing the subject, their Lordships observed as under:

4 An important change that has been made is that a person can now claim refund of any duty or interest as long as such duty or interest was paid or borne by such person. The conditionality of such payment having been made pursuant to an order of assessment does not exist. Secondly, once an application is made under Section 27(1) of the Act, it is incumbent on the authority concerned to make an order under Section 27(2) determining if any duty or interest as claimed is refundable to the applicant. The proviso to Section 27(2) of the Act sets out the instances where refund should be paid to the claimant instead of being credited to the Consumer Welfare Fund. The only relevance as far as payment of duty under protest is concerned is indicated in the second proviso to sub-section (1) of Section 27 of the Act which states that the limitation of one year shall not apply in such event. In other words, whether or not the duty is paid under protest once an application for refund is made in the requisite manner and form as prescribed, it is incumbent on the authority to deal with such an application. Where there is an assessment order, the authority will take it into account in deciding the application for refund. If such assessment order has been reviewed or modified in appeal such further order will obviously be taken into account. In other words, under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one.
9. In view of the above principles of law laid down by the Hon'ble Delhi High court, post amendment to Sec. 27, w.e.f. 1.4.2011 there is no necessity to file appeal against the assessment order, while claiming refund under Sec. 27 of the Customs Act, 1962.

10. In the result, the impugned order is set aside and the matter is remanded to the Adjudicating Authority to consider the refund claim on merit. Appeal allowed by way of remand
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