2016 (2) TMI 55

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....tion to the Kandla Customs Commissionerate and Kandla Special Economic Zone (SEZ) to forthwith decide the refund applications filed by the petitioners and return to the petitioners the excess amount of duty collected, with interest. The case of the petitioners is that 4% special additional duty was collected on the purchases made by the petitioners from the units situated in the SEZ. According to the petitioners, as per Government of India decision, such additional duty was not payable. The petitioners would, therefore, be entitled to refund of such excess duty collected by the respondents. The petitioners have already made refund applications, both before the SEZ authorities as well as before the Commissionerate of Customs, Kandla. These a....

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..... There is no clarification whatsoever in this connection. The Ministry of Commerce perse did not have any statutory power either to process the refund claims or entertain appeals or reviews. Appeals and reviews are also creation of statute. Provisions for refund are made in the Customs Act and Central Excise Act. They can be taken away by statutory amendments. The powers can be shifted into another authority if a valid law is made in order to do so. By a mere letter, Ministry of Finance could not have suspended the power of Commissioner(Customs) to exercise his statutory functions. It is undisputed that duty was collected by the Commissioner of Customs. Whatever be the character of the duty, the Commissioner of Customs collected the same o....

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....tutory 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/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactme....