TaxTMI 
TaxTMI 
2013 (9) TMI 705
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....neer Corporation, Japan. The petitioner is engaged in the import and marketing of Pioneer branded products in India. 3. The petitioner imported several electrical goods falling under the first schedule of the Customs Tariff Act, 1975 (hereinafter referred to as, the Act). The goods were cleared after payment of provisional duty. 4. As it was a case of a related party transaction, Customs Authorities referred the case to the Special Valuation Branch of the Customs for the purposes of valuation and clearance. Pending valuation by the Special Valuation Branch, all bills of Entry were cleared by the Customs Authorities provisionally under Section 18 of the Act. After valuation by the Special Valuation Branch of the Customs, the liability was determined and the importer i.e. the petitioner then applied for finalisation of the Bill of Entry. On the finalisation of the Bill of Entry, the final duty was assessed and the provisional duty paid was adjusted towards the final assessment. The said procedure is followed in related party transactions. In case, any additional duty is payable on final adjudication, the importer is liable to pay the same and where the provisional duty is more ....
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....e clear implication that the refund would be processed under Section 27 of the Act. This aspect has been addressed below. 7. On 28.04.2008 the Central Board of Excise and Customs issued Circular No. 6 of 2008-Customs, on account of various representations being made by the importers, exporters, Trade and Industry Association and had reference from some of the Customs Fields Formations. One of the issues dealt with by the said circular related to the fixation of time limit for filing an application for refund. In respect of the same, the circular provided as under: 4. Time - Limit: 4.1 In the Notification No.102/2007- Customs dated 14.9.2007, no specific time limit has been prescribed for filing a refund application. Under the circumstances, a doubt has been expressed that whether the normal time-limit of six months prescribed in section 27 of the Customs Act, would apply. In the absence of specific provision of section 27 being made applicable in the said notification, the time limit prescribed in this section would not be automatically applicable to refunds under the notification. Further, it was also represented that the goods imported may have to be despatch....
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.... that no specific time limit was fixed in notification dated 14th September, 2007. Doubts had been expressed as to whether Section 27 of the Act would apply. The circular purports to clarify that in the absence of specific stipulation in the notification, which made Section 27 of the Act applicable, the time limit prescribed in Section 27 of the Act would not be applicable automatically. This statement in the circular according to us is incorrect. Section 27 of the Act applies because of the statute i.e. the Act and does not require clutches of a notification for application. The aforesaid clarification in form of a circular can be also challenged and questioned to the extent that it withdraws or curtails beneficial provisions of Section 27 of the Act. The circular records that representations had been received from the importers, who had found it difficult to dispose of the exported goods and complete the requisite documentation within the normal period of six months. This period of six months is specified in Section 27 of the Act. The Board keeping in view the aforesaid factors had decided to permit importers to file claims for exemption upto a period of one year, i.e., the time ....
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....ted 1.8.2008 issued under Section 25(1) of the Customs Act, 1962 subject to fulfilment of certain conditions as envisaged in the said notifications. The time limit prescribed for the purpose of 4% CVD refund claim is one year from the date of payment of duty as per the said Notifications. Hence, in cases where the assessment is provisional, for the purpose of sanction of refund of 4% CVD, the date of payment of duty would be, the date of payment of CVD at the time of import of goods and not the date of finalization of provisional assessment. The Importer, therefore, would be eligible to get the refund, if the claims is filed within one year of the date of actual payment of 4% CVD i.e. the date of payment of duty at the time of clearance of imported goods." (Underlining supplied) 12. Circular dated 29th July, 2010 seeks to explain notification No. 93 of 2008 dated 1st August, 2008 and states as under: (i) Limitation of time specified for refunds under Section 27 of the Act is not applicable. (ii) Claims of refunds of 4% CVD under Circular dated 28th April, 2008 should be filed within one year of payment of duty, whether the assessment was provisional or....
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....ond the stipulated period of one year of the date of the payments of the duty at the time of clearance of the imported goods. The petitioner filed an appeal before the Commissioner of Customs (Appeals) against the order dated 30.10.2010 which appeal was further rejected by the Commissioner of Customs (Appeals) vide its order dated 21.3.2011 and the said order is impugned in the present petition also. Similarly, the second claim of the petitioner for the second set of bill of exchanges was also rejected by the Assistant Commissioner (Refund) vide order dated 23.12.2010. The petitioner filed an appeal against the order dated 23.12.2010 before the Commissioner of Customs(Appeal) which appeal has also been dismissed vide order dated 27.4.2011 and the said order dated 27.4.2011 is also impugned in the present petition. The third claim filed by the petitioner with respect to the third set of bill of exchange was also rejected on the same ground by the Assistant Commissioner (Refund) vide order dated 28.2.2011 and the petitioner has filed an appeal on 11.4.2011 against the said order before the Commissioner of Customs (Appeals). 18. The case of the petitioner is that by the impugned no....
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....ssary documents and furnished full information for the assessment of duty but the proper officer deems it necessary to make further enquiry for assessing the duty, the proper officer may direct that the duty leviable on such goods may, pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty finally assessed and the duty provisionally assessed. (2) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, then- (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed and if the amount so paid falls short of, or is in excess of, [ the duty finally assessed], the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (b) in the case of warehoused goods, the proper officer may, where the duty finally assessed is in excess of the du....
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....l order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, any goods on which duty is leviable. (2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2) insert any explanation in such notification or order, as the case may be, by notification in the Official Gazette at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be. (3) An exemption under sub- section (i) or sub- section (1) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory, duty) may be granted by providing for the levy of a duty On such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exempti....
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....on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [ duty and interest, if any, paid on such duty] had not been passed on by him to any other person: Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section and the same shall be dealt with in accordance with the provisions of sub- section (2): Provided further that the limitation of one year or six months, as the case may be, shall not apply where any [ duty and interest, if any, paid on such duty] has been paid under protest: [Provided also that in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one year or six months, as the case may be, shall be computed from the date of issue of such order]: [Provided also that where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation o....
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....refund in Section 27 of the Act. 27. The word ―exemption‖ as used in sub-section (1) to Section 25 can and should include extension or increase in time but cannot be stretched and expounded to include power of the Government to, by a circular, reduce the statutory time for a claim of refund stipulated under the principal enactment, i.e., the Customs Act, 1962. That would make the circular ultra vires the statute and beyond the scope of the Act, Rules etc. Circulars might depart from the strict tenure of the statutory provision and might mitigate rigours of law thereby granting administrative relief beyond terms of the relevant provisions of the statute, but the Central Government is not empowered to withdraw benefits or impose harsher or stricter conditions than those postulated by the statute. In later cases, circulars can supplant the law but not supplement the law. 28. Section 27 of the Act is a general provision relating to refund of any duty. Dictionary meaning of the word any' can indicate all' or every' as well as some' or one'. Usage depends upon the context of subject matter. In the context of Section 27 of the Act, the word any duty' should and would enc....
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....Section 27 has to be read with Explanation II i.e. the date of adjustment of duty after final assessment and not the date on which duty was paid provisionally under Section 18. 31. Section 18 of the Act, postulates payment of duty which is ad-hoc or interim duty which is paid but subject to final assessment. Ultimately, the duty payable is determined and decided by final assessment and the said determination is mandatory, when provisional assessment is made. Difference between the final duty payable and provisional duty paid will either result in a demand or a refund. Until final assessment is done, the duty paid is merely provisional and not fully ascertained or quantified. It can fluctuate. 32. The reason why explanation II to Section 27 refers to final assessment and not provisional assessment is apparent and logical. Till final adjudication order is passed and duty is ascertained, quantum of the duty paid or payable is uncertain. The amount of refund will be determinable upon final assessment and not earlier. Even when there is an exemption and duty is refundable post import, the refund cannot be ascertained and will be fluctuating till final assessment order is passed. T....
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....cribed under the Act. Notification can liberalise and grant exemption. Indulgence and benevolence can be an objective of a notification and restricted or shorter period of refund is not postulated. Notification cannot impose more deleterious terms and reduce the period of limitation for refund of claim. (Sub - section 2A to Section 25 is not applicable) ii. Section 27 of the Act prescribes period of limitation. The period of limitation under the said Section cannot be curtailed by way of a notification but a notification can extend and increase the period of limitation. Similarly, a circular cannot reduce the period of limitation for seeking refund stipulated in Section 27 of the Act. iii. Section 27 applies to all refunds whether due and payable pursuant to appellate orders or court orders or otherwise in terms of exemption notification under Section 25(1) or special orders under Section 25(2) of the Act. iv. The expression date of payment' used in notification No. 93 of 2008 dated 1st August, 2008 can mean the date of final assessment. The said interpretation would be in accordance and as per explanation II to Section 27. Similar expression has been use....