TaxTMI 
TaxTMI 
TaxTMI 
2020 (4) TMI 9
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....x-bond bills of entry on the basis that the revised rate would be applicable to the imports whereas, the petitioner contended that the original rate would be applicable as revision of duty will, according to it, come into effect only from date of publication of such revision, being 06.08.2001. Notwithstanding, the aforesaid submission, the differential duty amounting to a sum of Rs. 1,09,11,275/- had been remitted under protest in September 2001 on various dates between 01.09.2011 and 06.09.2001. 3. The petitioner challenged the order of the Department in raising a demand for differential duty on the ground that the original rate would be applicable, since the revised rate had been published only on 06.08.2001, post the dates of import. This issue was decided in favour of the petitioner on 04.06.2015 in W.P.No.15635/01. This order has become final. Refund of the duty remitted was claimed by the petitioner on 03.02.2016. Though the refund was sanctioned, the same was credited to the Consumer Welfare Fund on the ground of unjust enrichment. The sole basis appears to have been that the amount claimed as refund was not charged to the profit and loss account but retained in 'rece....
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....ute in the year 2001. The appellant has even approached to the Hon'ble High Court and only on the orders of the High Court they preferred the refund claim. More than 16 years have been passed in the interregnum. In the circumstances, it would be appropriate that the denovo proceedings would be completed without undue delay, in any case, within three months of the date of the receipt of this order. Needless to say, in such denovo proceedings, the appellants shall be permitted to produce additional evidence if any, so desired. All issues are left open including the claim of interest on the refund amount. 5. The proceedings were taken up on remand by the Assessing Officer and in the ultimate analysis, the claim of the petitioner stood rejected vide impugned order dated 09.02.2018. The authority has, in my considered view, not addressed the matter in proper perspective. He first refers to the order of CESTAT as 'an opinion' that he then, 'takes into consideration for deciding the issue on hand'. He then states at para 24 that 'the decision of the Hon'ble CESTAT is neither supported by any statutory provision nor by any case law'. These statements are unaccept....
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....f accounting followed by the petitioner and as to whether the duty had been reflected in the 'receivables' or 'profit and loss' accounts. 8. Mr.Srinivas requests that the matter be remanded to enable the authorities to carry out this exercise now. However, I am not inclined to accept this request in December 2019 in relation to transactions of the year 2001, particularly, when the officer is seen to have been remiss in his approach to the issue. The facts as noted by the Authority are itself clear to establish the position that incidence of duty has not been passed on to the customer. At paragraph 22, the officer sets out the facts as follows: 22. I have gone through the documents submitted by the importer. The main issue to be decided is whether the doctrine of unjust enrichment is applicable in respect of the amount of refund claimed by the importer. The imported quantity under Ex Bond Bills of Entry No.06 to 08/2001 dated 03.08.2001 and 09/2001 dated 04.08.2001 is 2471.788 MTs. The copy of the sale Register produced by the importer shows that a quantity of 2479.035 MTs of the imported Palmolein was sold during the month of August, 2001. The importer also submi....
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.... of the Act. 13. In this case the application was filed by the petitioner on 13.11.2017. Hence refund if sanctioned, ought to be paid before 13.02.2018 without interest and if the payment had been made after 13.02.2018, such refund would have carried interest. The claim has itself been rejected on 09.12.2018 and thus, according to the respondent, no interest is payable. 14. According to the petitioner, the provisions of Section 27A will not apply in this case since what has been refunded is not a duty but an amount that was not at all payable by the petitioner/liable to be collected by the revenue. Such payment does not, according to the petitioner, bear the character of duty and is hence not bound by the rigour of Section 27A. 15. Mr.Srinivas disagrees pointing out that every amount that is refunded would bear the character of duty for the purposes of Section 27A unless it had been extorted without the authority of law and without there being a charging mechanism/provision to support such levy. 16. The provisions of Section 27A read thus: 27A.Interest on delayed refunds If any duty ordered to be refunded under sub-section (2) of section 27 to an applicant is not refunded ....
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....at so far as he is concerned, the decision has become final and cannot be reopened on the basis of a decision on another person's case; this is the ration of the opinion of Hidayatullah, C.J. in Tilokchand Motichand and we respectfully agree with it. 18. Thus, only a refund that is claimed on the ground that a provision in terms of which it is levied is unconstitutional would stand outside the purview of Section 27A. This is also the basis of my order in the case of Enmas Andritz Pvt. Ltd.Vs. The Assistant Commissioner of Service Tax and Another in W.P.No.23664 of 2017 dated 06.09.2019, wherein I had occasion to consider the mandamus sought for by that petitioner directing refund of service tax remitted by it in terms of Rule 2(1)(d)(iv) of the Service Tax Rules, 1994. The aforesaid Rule is in relation to taxable services provided by a person outside India, who did not have any office in India, the person receiving taxable service being situated in India. The aforesaid Rule had been challenged before the Bombay High Court in Indian National Ship Owners Association Vs. Union of India, [(2009) 13 STR 235] and had been struck down and the levy held to be unconstitutional till the ena....