2007 (8) TMI 215 - HC - Customs

Customs Act does not apply to cess refund claims, court orders refund with interest. Protest letter deemed irrelevant.

HIND AGRO INDUSTRIES LIMITED Versus COMMISSIONER OF CUSTOMS

HIND AGRO INDUSTRIES LIMITED Versus COMMISSIONER OF CUSTOMS - 2008 (221) E.L.T. 336 (Del.) Issues Involved:1. Applicability of Section 27 of the Customs Act, 1962 to the refund claims of the cess.2. Impact of the protest letter on the limitation period under Section 27 of the Customs Act, 1962.Detailed Analysis:1. Applicability of Section 27 of the Customs Act, 1962 to the Refund Claims of the Cess:The principal issue in these appeals concerns whether Section 27 of the Customs Act, 1962 applies to the claims for refund of the cess paid by the Appellants. The CESTAT held that the refund applications were rightly rejected since they were filed beyond the statutory time limit prescribed under Section 27 of the Act. However, the court clarified that Section 27 pertains to the refund of 'any duty' within the meaning of the Customs Act, which means a duty of customs leviable under this Act. The court observed that the cess paid by the Appellants was not customs duty but a cess under the Agricultural and Processed Food Products Export Development Authority Cess Act, 1985. Therefore, the refund of such cess erroneously paid cannot be processed under Section 27 of the Customs Act. The court cited the judgment in Salonah Tea Company Limited v. Superintendent of Taxes, Nowgong, which held that refund provisions under an Act apply only where money is paid under that Act. Since the payment of the cess was not under the Customs Act, the limitation period under Section 27 does not apply. The applications for refund were made within three years after the discovery of the mistake, thus not barred by limitation.2. Impact of the Protest Letter on the Limitation Period under Section 27 of the Customs Act, 1962:The alternative submission by the Appellants was that even if Section 27 applied, the protest letter dated 3rd January, 2001, would obviate the applicability of the period of limitation in terms of the proviso to Section 27 (1) of the Act. The court, however, found this question redundant since it had already established that Section 27 did not apply to the refund of the cess erroneously paid. The court noted that the custom authorities were bound to refund the cess erroneously paid by the Appellants under a mistake of law and that there was no question of processing such a claim under the Customs Act.Conclusion:The court set aside the impugned orders of the CESTAT, the Commissioner (Appeals), and the Assistant Commissioner (Refund), directing the Respondents to refund the balance amount of the refund claimed by the Appellants along with interest at 6% per annum from the date of payment till the actual date of refund. If the refund is not made within four weeks, simple interest at 12% per annum would be payable for the delayed period. The appeals were allowed with costs of Rs.5,000/- to each of the Appellants, to be paid by the Respondents within four weeks.