TaxTMI 
TaxTMI 
2007 (8) TMI 215
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.... 2. The brief facts leading to the filing of these appeals are that both the Appellants are 100% Export Oriented Units ('EOUs') engaged in the manufacture of meat and meat products. A cess was leviable on meat products in terms of Serial No. 2 of the Schedule to the Agricultural and Processed Food Products Export Development Authority Cess Act, 1985 ('Cess Act'). The Ministry of Commerce and Industries, Government of India by a notification dated 17^th January, 2001 fixed 0% cess for all 100% EOU. It is stated by the Appellants that even prior to the notification fixing 0% cess, the Appellants had been informed by the Export Promotion Council ('Council') that the matter had taken up by the Council with the Government of India for lifting of the cess in respect of export of meat products produced in the EOUs and that the matter was under the active consideration of the Government. The Appellants were accordingly advised to pay the cess under protest. The Appellants submitted a letter dated 3^rd January, 2001 to the Commissioner of Customs, ICD, Tughlakabad, New Delhi stating that they were paying cess under protest. It is claimed that the said letter was directly delivered to Refu....
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.... this sum was also directed to be credited to the Consumer Welfare Fund. The Assistant Commissioner held that no reliance could be placed on the letter dated 17^th January, 2001 and that in any event the protest was deemed to be finalized on 17^th January, 2001, the date on which the notification was issued. On that basis it was held that the refund application should have been filed within six months thereafter in terms of Section 27 (1) of the Act. 4. The appeals filed by the Appellants against the aforementioned orders were dismissed by the Commissioner of Customs (Appeal) by the common order dated 26^th August, 2004 The Commissioner (Appeals) held that all claims for refund ought to be filed only in terms of Section 27 of the Act read with Rule 11 and under no other provision and in no other Forum. Further the Commissioner (Appeals) held that the Assistant Commissioner erred in crediting the amount of refund to the extent allowed, to the Consumer Welfare Fund. The authorities were directed to refund to the Appellants the amount found admissible by the Assistant Commissioner applying the limitation under Section 27 of the Act. 5. The CESTAT, while dismissing the appeals of....
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.... (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, before the expiry of one year; (b) in any other case, before the expiry of six months, from the date of payment of duty and interest, if any, paid on such duty, in such form and manner as may be specified in the regulations made in this behalf and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty and interest, if any, paid 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 same shall be dealt with in accordance with the provisions of sub-section (2): Provided further that the limitation ....
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....h, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally by calculated taking into account the principle underlying Clause (c) of sub-section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be, since the enactments do not contemplate any of their provisions being struck down and a refund claim arising on that account. In other words, a claim of this nature is not contemplated by the said enactments and is outside their purview.' 12. The relevant passages of the judgment in Anam Electrical Manufacturing Co. reads as under (ELT, p.262-63): 'FORMAT ORDER Pursuant to the directions given in Mafatlal Industries v. Union of India ? 1997 (89) ELT 247 (SC) = 1996 (9) SCALE 457, the appeals/Special Leave Petitions coming up for disposal shall be disposed of in terms of one or the other of the clauses below: (1) xxx xxx xxx xx....
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....ial relief of refund of tax collected illegally was not allowed on the ground that it was beyond the period of limitation prescribed under that Act. While allowing the appeal, the Hon'ble Supreme Court held that the provision under the said Act for refund would apply 'only in a case where money is paid under the Act.' It was observed in para 13 as under (ELT, p.254): 'Under Article 113 of the Limitation Act, 1963 the limitation was the period of three years from the date the right to sue accrues. It may be noted that in the instant case under Section 23 of the Act, it was provided that the Commissioner shall, in the prescribed manner refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under this Act either by cash or, at the option of the producer or dealer, be set off against the sum due from him in respect of any other period. Section 23 applies only in a case where money is paid under the Act. If there is no provision for realisation of the money under the Act, the act of payment was ultra vires, the money had not been paid under the Act. In that view of the matter Section 23 would not apply.' 15. In U.P. Pollution Control Board v. M....