TaxTMI 
TaxTMI 
2020 (1) TMI 176
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....ssed by the Hon'ble Customs, Central Excise and Service Tax Appellate Tribunal, Ahmedabad and accordingly hold that the amount deposited with the Customs authorities ought to be refunded to the petitioner. b) Issue a writ of Mandamus, a writ in the nature of Mandamus or any other writ, order or direction as the Court deems fit directing the Department to refund the amount of Rs. 9,59,27,605/- along with interest to the petitioner. c) Pass an ad-interim order for staying order No. A/11614/2018 dated 01.08.2018 passed by the Hon'ble Customs, Central Excise and Service Tax Appellate Tribunal, Ahmedabad pending the hearing and final disposal of this Special Civil Application. d) Pass any other consequential Writ, Order or Direction as the Court deem fit." Thus, what is essentially under challenge in this petition is the dismissal of the Appeal filed by petitioner challenging the order dated 2.1.2017 rejecting the claim of petitioner for refund, as prayed therein, on the ground that provisions of Section 27 of the Customs Act, would operate and the claim of refund was time barred. 3. The learned counsel for the petitioner initially made elaborate....
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....e business of importing and distributing Liquified Natural Gas (LNG) in India. In certain exigencies, the petitioner imports LNG from different suppliers on Delivered Ex-ship (DES) basis or on Cost & Freight (C&F) basis. 4.2 The petition contains that the contractor raised a provisional invoice on the basis of quantity of LNG loaded at the port of dispatch. During voyage, the vessels consume the LNG loaded on them as fuel. Thus, the quantity of LNG loaded on them as fuel. Thus, the quantity of LNG received and unladed in India is lower than the quantity loaded at the port of dispatch. The Contractors raise a final invoice basis the quantity actually unloaded in India. Thus, the value of LNG mentioned in the final invoice is the actual price paid or payable by the petitioner to the contractors for import of LNG and is therefore, the transaction value for the import of LNG by the petitioner. 4.3 The petition contains that an the basis of the bill of lading quantity, the petitioner, approached the customs authorities for finalization and contended that customs duty was payable only on the quantity of the LNG landed in India and not on the quantity mentioned in the bills of landi....
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....itation. In fact the Commissioner of Customs (Appeal) did uphold the contention of the petitioner but that order was amenable to be challenged in Appeal proceeding before the CESTAT and in fact the department did file an appeal before the Tribunal challenging the order of Commissioner (Appeal) dated 4.12.2013 and therefore, there was no justification for the department to insist that the period of limitation would start running from 4.12.2013 i.e. the date of order when the respondent no.2 upheld the contention of petitioner. 6. The counsel for the petitioner further submitted that it was not open to the department to contend that the period of limitation would start running from 4.12.2013 when the department itself had challenged the same before the Tribunal i.e. CESTAT by way of Appeal and when the order of the Appellate Commissioner dated 4.12.2013 was being considered on merits by the CESTAT, it goes without saying the claim of refund based thereupon could not have been proceeded by the respondent. The non-existence of any stay order against the order of the Appellate Commissioner dated 4.12.2013 also would not be a ground for contending that the claim of refund would start ....
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....: [13] As already noted in the preceding paragraph, on the Writ Petitions filed before this Court, the first order of the Tribunal dated 01.08.1997 was set aside by this Court and the matter was restored to the CEGAT for de novo consideration and only thereafter, in the year 1999, the Tribunal accepted the case of the assessees on valuation and allowed the assessees' appeals. Thus, in stricto senso, the claim for refund would arise only from 1999 and not before. It is no doubt true that the assessees made applications for refund consequent on their appeals being allowed by the Collector of Customs (Appeals). But then, when the matter was taken on appeal by the Revenue, the assessees can validly lay their claim only in the year 2001 when after the order of this Court setting aside the order of the Tribunal, the Tribunal dismissed the Revenue's appeals. Thus reading Section 27A of the Customs Act on the application made validly by the assessees on 24.10.2001, the said applications thus having got to be disposed of within a period of three months from the date of receipt of such applications, the question of interest payable on the belated refund would have to be governed by ....
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....e appellate Commissioner's order dated 4.12.2013 itself when there was no stay, or prohibitory order against operation of the said order in the Appeal preferred by the Department. 11. The learned counsel for the petitioner invited Court's attention to the provision of Section 131A and 153 of the Customs Act to support his contention that the law provided for service of order decision etc. and the order to become effective have to be served upon the party and exclusion of time taken for receiving the copy of order. Based thereupon counsel for the petitioner contended that the order dated 8.9.2014 could be said to be effective only when it was received by the petitioner on 29.9.2014 and the refund application preferred within 1 year therefrom could be said to be well within the time prescribed under Section 27 of the Customs Act. 12. In support of this contentions counsel relied upon the decision of this Court in case of Vadilal Industries Ltd Vs. Union of India, reported in 2006 (197) ELT 160, with greater emphasis upon the observations, which are in fact also adverting to the facts, which would appear to be self-explanatory without any further probing, which deserve to be....
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....Section 37 C of the Act. It is not even the case of respondent No.2 that it had sought to effect service and had effected service in any of the modes prescribed under clauses (b) and (c) of sub Section (1) of Section 37 C of the Act. In the circumstances, the averment made on oath by the petitioner that a copy of the order was not served on the petitioner, remains unrebutted." 13. Learned counsel for the respondents invited this Court's attention to the definition of Section 27 of the Act and contended that in absence of any prohibitory order from any Court or Appellate Authority, mere pendency of the proceedings before the Tribunal or Appellate Forum in itself would not have any effect of long getting or extending the period for filing refund claim. In the instant case, the order of the Appellate Commissioner dated 4.12.2013 had already been passed under which the claim for refund could have been led, though revenue's appeal challenging the same before the Tribunal was pending but there was no stay order granted against the order and hence, mere consideration of the appeal before the Tribunal, would not have been taken to be a grant for extending the period pre....
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.... acknowledging the order of CESTAT. f) 08.08.2015 : Petitioner vide letter informed the Deputy Commissioner about the order of CESRAR and sought refund of customs duty amounting INR 9,59,27,205/-. As a precautionary measure, petitioner filed formal refund application along with the aforementioned letter. 09.09.2015, that is the date mentioned in the stamp placed on the application by the department. g) 03.11.2015 : Instead of refunding the amount as sought by the petitioner, the Assistant Commissioner issued show cause notice alleging that refund is liable to be rejected on the ground that the refund application has been filed on 9.9.2015 i.e. after the expiry of one year from the date of the order passed by the Commissioner (Appeals). h) 30.11.2015 : Reply filed by the petitioner in response to the show cause notice. i) 04.12.2015 : Assistant Commissioner rejected the refund claim vide order dtd 4.12.2015 on the ground that the refund is time barred. j) 31.01.2016 : Against aforesaid order, petitioner preferred an appeal before the Commissioner (Appeals) k) 02.01.2017 : Commissioner (Appeals) rejected the appeal of petitioner a....
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....ase of Dena Snuff (P) Ltd., Vs. Commissioner of Central Excise, Chandigarh, reported in 2003 (157) ELT 500 (S.C) and relied emphasis upon the discussion of para-5 thereof, which is required to be reproduce as under, to indicate that the claim of refund is to be from the final decision in the assessee's own case. : "para-5: As far as the first submission is concerned, we are of the view that the Tribunal's appreciation of the relevant paragraph in Mafatlal Industries (supra) was correct. The "cause of action" of the appellant would arise only after the final dispute regarding the classification list had been settled by this Court. That was done as recently as on 28-8-2003. The application for refund by the appellant was therefore premature. We have noted the proviso to Sub-section 1. of Section 11(B) which says that the period of limitation of one year prescribed under sub-section (1) will not apply in case duties are paid under protest. The question then is from which date will the period of limitation start to run? It appears on the basis of the paragraph of Mafatlal Industries decision which has been relied upon by the Tribunal it would have to be from t....
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.... customs house." The plain and simple reading of these two provisions in light of the decision rendered by this Court in case of Vadilal Industries Vs. Union of India, reported in 2006 (197) ELT 160 would clearly indicate that the petitioner's claim of refund raised on 8.8.2015 and said to be received on 9.9.2015, could be said to be well within time under section 27 of the Customs Act. The section 131A of the customs Act is a provision based upon the general principle of law and equity, which clearly indicate that the order to be made effective, has to be served upon the party affected thereby, and therefore, the time taken in serving the order is obviously required to be excluded from the period prescribed for limitation and on basis of this clear analogy supported by provision of law, if one takes into consideration the provision of Section 27(1B)(b) of the Customs Act, then, there would not be any room for any doubt that the limitation would start from the date of the receipt of the order. It is required to be noted that the Tribunal rendered its order upholding the order of the Appellate Commissioner on 8.9.2014 that order was received by the petitioner on 29.9.2014 and the....