TaxTMI 
TaxTMI 
2016 (1) TMI 958
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....removed out of SEZ. Resultantly, according to the petitioner such custom duty of Rs. 25,18,342/became refundable. The petitioner therefore, filed refund application which came to be returned by the Additional Commissioner, Customs, Surat, on the ground of authority of jurisdiction. In the said order he conveyed as under : "Please refer to your refund application dated 29.04.2015 and subsequent letter dated 04.04.2015 on above subject matter. 2. In this respect, it is to inform you that that in case of a SEZ unit, the assessment in made by specified under the SEZ Act. In the absence of any specific provisions in the SEZ Act/ SEZ Rules authorising customs officers/ authorities to make the refund in relation to such assessment (made by the specified officers), there is no legal authority for the Customs Officers to deal with sanction such refund claims. Moreover in the case of M/s. Anita export considered by the High Court, the refund relates to an adhoc amount deposited by the SEZ Unit in relation to a consignment that was investigated by the Customs authorities at Kandla and adjudicated by Commissioner of Customs, Kandla. 3. In view of the above, your refu....
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....2. In the letter, as we have noted, while noticing that SEZ Act has overriding effect over other laws, it was also noticed that the SEZ officers were not accepting or disposing the refund applications due to lack of any provision in the SEZ laws for dealing with the same. The issue was therefore, taken up with the Department of Commerce for incorporation of provisions leading to refund as well as appeal and review in the SEZ law to ensure disposal of cases related to this issue. Under the circumstances, pending refund applications had to be returned to the applicants with a advise to approach the Department of Commerce. It was further conveyed that if any appeal was pending, same may also be returned for approaching the Department of Commerce. 14. Two things immediately emerge from this letter. Firstly, that the Ministry of Finance also recognised that there was no mechanism under the SEZ Act and Rules framed thereunder for entertaining refund applications and secondly, that the Ministry was of the opinion that such a set up was required to be made by making suitable changes in law. In fact the communication does not stop short at covering refund applications for such trea....
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....Many issues may arise which are not clear to us. But one thing is clear that such issues can be decided only by the authority under the Customs Act. 16. Section 27 of the Customs Act, 1962 pertains to claim for refund of duty. Subsection( 1) thereof provides for an application to be made by person claiming duty or interest in prescribed form to the prescribed authority within the prescribed time. Subsection(2) of section 27 authorises the Assistant Commissioner of Customs or the Deputy Commissioner of Customs, if he is satisfied that whole or part of the duty or interest paid by the applicant is refundable, to make an order accordingly. Proviso to subsection(2) statutorily embodies the principle of unjust enrichment. 17. In case of Mafatlal Industries Ltd. and ors. v. Union of India and ors. reported in (1997) 5 Supreme Court Cases 536, the Constitution Bench of Supreme Court considered the statutory provisions under the Customs Act, 1962 and the Central Excise Act and held that any claim for refund would be covered by section 27 of the Customs Act or 11B of the Excise Act as the case may be. It was observed as under: (i) Where a refund of tax/du....
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....ually the refund is granted, shall be reckoned from such date. 2.3 Despite such legal position clarified by the High Court, once again the Assistant Commissioner of Customs, Surat refused to entertain the refund application of the petitioner. After recording facts in case of Anita Exports, he concluded as under: 6. In your case, the refund of Additional Duty of Custom (CVD) is related to CVD paid under protest on clearance from SEZ unit to DTA. Such duty was collected by Range Dahej, Commissionerate SuratI (as per Copy of TR6 challan submitted). Further, the administrative control /revenue collection from your unit is with Central Excise & Customs, Bharuch Commissionerate. It is evident that Ahmedabad Customs Commissionerate does not have jurisdiction over your unit. The order of Hon'ble High Court in case of M/s.Anita Exports may be applicable to those Customs Commissionerates who are having administrative control & collecting Customs duty from SEZ units. In the case of M/s.Anita Exports also, as per High Court Order, since Kandla Customs Commissionerate has adjudicated and collected the penalty/fine, therefore they are the proper authority to process the ref....