TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 150
X X X X Extracts X X X X
X X X X Extracts X X X X
....10 DATED 6.9.2010 partially allowed the appeal under which only an amount of Rs. 1,49,030/- was confirmed and demand of balance amount of Rs. 2,75,7221/- was set aside. Aggrieved with the OIA, the appellant filed an appeal before CESTAT Ahmedabad, who vide Order No. A/1926/@ZB/AHD/2011 and S/1432/WZB/AHD/2011 date-17.10.2011, remanded the matter back to adjudicating authority. Consequent to the said CESTAT Order 17.10.2011, the appellant filed the refund claim for Rs. 27,57,221/- on 22.8.2016 which has been rejected by the adjudicating authority. Being aggrieved by the order of the adjudicating authority by which the refund of the appellant rejected, the appellant filed appeal before Commissioner (Appeal) which was rejected by upholding the order-in-original. Therefore, the present appeal. 2. Both the lower authorities rejected the refund claim on the ground of time bar for the reason that the period for filing refund is 1 year from date of tribunals remand order that was passed on 17.10.2011, whereas the refund claim was filed on 22.08.2016. 3. Shri K.I Vyas, learned counsel appeared on behalf of the Appellant and argued the case in length. He submits that in the present case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....envat amount and interest thereon paid by the appellant, before issuance of show cause notice proposing demand of said amount, should be treated as deposit and not duty and consequently whether time limit prescribed under section 11B shall apply or otherwise. As per the fact of the present case the appellant have paid consciously and knowingly that the said payment is towards alleged wrong availment of cenvat credit and also paid interest thereon which is payable in terms of rule 14 of Cenvat Credit Rules, 2004. Therefore at the time of payment the nature of payment was clearly as of duty and not the deposit. The Ld. Counsel emphasized tribunal's remand order dated 17.10.2011 whereby he submits that the amount of cenvat paid by the appellant was considered as deposit to hear the appeal, therefore, the said payment is a deposit under section 35F and for the refund of the said amount time limit will not apply. In this regard I would like to refer to para 4 of tribunal's order dated 17.10.2011 which is re-produced below - "4. On perusal of the records, we find that the appellant had claimed that they have deposited an amount of Rs. 27,57,221/- during the investigation against the l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned from 17.10.2011 whereas refund claim was filed after almost more than four years hence, the same is clearly time-bar. As regard judgment relied upon the Ld. Counsel for the appellant, after going through the said judgments in detail, I find that in the case of Spam Intermediates (supra) there was not the issue of limitation, the case was only on the issue of procedure for claiming refund therefore the said judgment is not applicable. As regard the judgment in the case of Ashok Shetty Associates CA supra, I find that the said judgment was passed by single member bench. Whereas a division bench considering the identical issue in the case of Petronet LNG Ltd. (supra) after analysing various supreme court judgments held as under - "4. We have carefully considered the submissions made by both the sides and perused the record. We find that the limited issue to be decided by us is, whether refund claim filed by the appellant is governed by Section 27 of the Customs Act, 1962 and consequently it is time-barred or otherwise. We find that though the amount of refund claim is related to duty paid and the said amount is customs duty including the duty on the actual receipt quantity. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... remedy is open on the ground that the money received by the assessee was not in the nature of refund. This was the view taken by the Tribunal in a previous decision in the case of Miles India Ltd. v. The Assistant Collector of Customs but it was assailed before this Court. The appeal was withdrawn. This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefore in the relevant provisions of the Customs Act, 1962. If really the payment of the duty was under a mistake of law, the party might seek recourse to such alternative remedy as it might be advised. See the observations of this Court in Miles India Ltd. v. The Assistant Collector of Customs [1987(30) E.L.T.641 (S.C.) = 1985 E.C.R. 289]. 7. In the aforesaid view of the matter the Tribunal was right. The appeal, therefore, has no merits and it is accordingly not entertained and dismissed. There is no order as to costs." From the above judgment, it is clear that even if there is refund of duty which was recovered without authority of law, the refund made before the departmental authority, limitation p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stoms authority under Section 27 of Customs Act, 1962, the said authority must necessarily operate within the four corners of the said Act and cannot have recourse to Section 72 of the Indian Contract Act, 1872 and the delayed application rightly rejected as time barred. The Hon'ble Supreme Court in the case of UOI vs. Amines and Plasticizers Limited held that refund claims filed beyond the period prescribed under Customs Act, 1962, the High Court order directing the Revenue to ignore the period of limitation and dispose of the refund claim stands set aside in the light of law declared in Mafatlal's case and the refund claim was held to be dismissed as barred by time. The Hon'ble Supreme Court in the case of UOI vs. Kirloskar Pneumatic Company - 1996 (84) ELT 401 (SC) held that the High Courts under writ jurisdiction cannot direct the Customs authorities to ignore the time limit prescribed under Section 27 of the Customs Act, even though High Court itself may not be bound by the time limit of the said Section, Articles 226 and 227 of the Constitution of India. In view of the above judgment, only the High Court, under writ jurisdiction, can exercise the inherent power provid....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... below:- "Section 27 - Claim of refund of duty: - (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely:- (a) 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 shall be computed from the date of issue of such order; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; As per clause (b) of sub Section (1B) of Section 27, where the duty became refundable as a consequence of any judgment, decree, order or direction of the appellate authority, the limitation of one year shall be computed from the date of such judgment, decree, order or direction. In the present case, the demand of duty on short imported goods stands set-aside as per the order of Commissioner (Appeal) and as a consequence, the appellant become eligible for refund of the said amount. Therefore, in terms of clause (b) of ....