TaxTMI 
TaxTMI 
2009 (8) TMI 539
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....laim and refunded in terms of cheque dated 15-9-1999 for a sum of Rs. 2,30,687/- through its authorised Custom House Agent M/s. S. Natesa Iyer & Co who incidentally had also functioned as the agent for the clearance of the goods at the time of import, was barred by the period of limitation as prescribed in Section 28 of the Customs Act, 1962. 2. The refund claim had been made by the importer, who had earlier imported certain weaving machines which was used in the manufacturing activity of the importer and for which a total duty of Rs. 16,88,555/- had been paid in terms of bill of entry dated 31-3-1999. 3. The Assessing Officer who had allowed the refund was of the view that it was erroneously refunded and sought to reclaim the amount ....
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....e the attempt to reclaim the refund amount was on the premise that the refund of the amount would not have been possible if it should have been tested on the touchstone of doctrine of unjust enrichment. 7. The Appellate Commissioner apart from answering the grounds raised against the importer also found that the reopening of the proceedings under Section 28 of the Act was also not time-barred as though the importer might have received the notice dated 14-3-2000 only on 3-4-2000 but the importer's agent who had acted as their agent for the purpose of making the application for refund had received the notice on 14-3-2000 and if it should be taken to be a notice on the importer also, the proceedings under Section 28 is not barred by limitat....
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....e of law. 11. This contention of the appellant-assessee before the Tribunal found acceptance and therefore the Tribunal allowed the appeal and set aside the order of assessment for the recovery of the refund amount. It is the turn of the Revenue now to come before this Court with the order of the Larger Tribunal as wrong as the Tribunal would not have construed that the notice issued to the agent of the very importer is not good enough notice to the importer. 12. Appearing on behalf of the appellant Smt. Veena Jadhav, the Central Government Standing Counsel submits that the Tribunal has committed an error in coming to the conclusion that the notice issued on the clearance agent who had earlier acted as an agent for the purpose of refu....
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....when the cheque pursuant to the refund order was received by the agent himself and the proceedings are only because of the issue of the cheque by way of refund. 15. Countering the said submission Shri Rajesh Chander Kumar, learned counsel appearing for the respondent-assessee would submit that the case is covered by the ratio of the decision of the Supreme Court in the case of Collector of Customs, Cochin v. Trivandrum Rubber Works Ltd., than it applies in all fours to the present case that even in the said case the Court found that a notice issued only to the agent which was in time and a belated notice to the importer can, in no way save the limitation for the purpose of Section 28 of the Act. Also submits the notice in fact was not se....
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....s valid on the day when the notice was served on the agent perhaps as good a service on the importer. While the authorisation does not necessarily indicate so, the submission that authorisation can be implied even for the further proceedings under Section 28 of the Act for recovery of wrong refund cannot be accepted for the reason that while in fact the authorisation does not say so. The proceedings under Section 28 of the Act cannot be said as a proceedings which is part of refund application under Section 27. Therefore the argument has to be rejected. 19. We find that the distinction sought to be raised with the decision of the Supreme Court in Trivandrum Rubber Works Ltd., case was rendered in the contest of short levy and in the pres....