TaxTMI 
TaxTMI 
2021 (4) TMI 598
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.... shipment was based on the principle of Delivered Duty Paid. The appellant-Company, based upon the authorization of M/s. BEML, arranged for the customs clearance of imported consignment through its customs house agent M/s. Skyline Air Logistics Ltd. by submitting a bill of entry for paying the duty of customs. The appellant-Company's contention is that the current duty of customs payable on the value of cost specified in the bill of entry was at Rs. 4,743/-, as against which, the appellant-Company discharged duty of customs to the tune of Rs. 42,31,718/- resulting in excess payment of Rs. 42,26,975/- on account of arithmetical error while computing the liability. The appellant-Company has stated that the said duty was deposited vide TR 6 Challan No.98006935 on behalf of M/s. BEML, which is an importer. The goods were cleared vide bill of entry dated 5.3.2009. It has been stated by the appellant-Company that the excess payment of custom duty was due to clerical error. The appellant-Company wrongly applied the exchange rate while determining the assessable value in the bill of entry. The appellant-Company further submitted that the currency indicated in the invoice was KRW (Korean Kr....
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....sable value at Rs. 19,376/-. The contention of the appellant-Company is that as per the reassessed bill of entry, the correct assessable value works out to Rs. 19,416/- and the actual customs duty payable is Rs. 4,743/-. The appellant-Company, vide letter dated 31.12.2009 filed on 6.1.2010 before the Deputy Commissioner, sought for refund of excess duty. The contention of the appellant-Company is that this application has not been adjudicated by the Deputy Commissioner of Customs till date. 4. The Assistant Commissioner issued a show cause notice on 11.7.2011 in respect of the refund application dated 16.4.2009 filed by M/s. BEML alleging that M/s. BEML, as the importer, had not borne the incidence of customs duty and therefore, M/s. BEML is not eligible to claim the said refund under Section 27 of the said Act of 1962. It was stated that the customs duty was paid by the appellant-Company and excess duty was paid by it and therefore, was not entitled for reimbursement. M/s. BEML filed a detailed reply before the Assistant Commissioner objecting to the show cause notice and requesting for issuance of refund under Section 27 of the said Act of 1962 in favour of the present appella....
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....lore was within the period of limitation specified under Section 27 of the Customs Act, 1962 ? 7. The Tribunal, while dismissing the appeal preferred by the present appellant, in paragraphs-4 to 7 of the impugned order, has held as under: "4. Learned counsel for the appellant submitted that the impugned order is not submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and circumstances and the position of law. He further submitted that the appellants have furnished all the documents which were required for claiming the refund. He further submitted that the appellants are the agents of M/s.BEML who are the importers and the owners of the goods and the duty was paid by them on behalf of M/s.BEML as their agent. He also submitted that the appellants are well within their right to file the refund of excess duty in terms of Section 27 of the Customs Act, 1962. He further submitted that once amendment to the Bill of Entry is permitted the excess duty is liable to be refunded without an application for refund under Section 27 of the Customs Act. He also submitted that the excess duty paid on account of clerical e....
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....of the Tribunal in the case of Minerals & Metals Trading Corporation of India Vs. CC reported in 1993 (66) E.L.T. 89 and the relevant para is reproduced herein below: 9. Section 154 only mentions about corrections of clerical and arithmetical error and it does not mention about the consequential relief of refund of those amounts which accured due to the above said corrections. The Supreme Court has also held in the Doaba Cooperative Sugar Mills' case that if the payment of duty was made under a mistake of law the appellant may seek recourse to such an alternative remedy. In this case, even though the payment of duty is due to arithmetical or clerical mistake, still the only provisions for refund under the Customs Act is Section 27 of the Customs Act, 1962 and there is no other provision providing for a refund by the Customs authorities under the above mentioned Act. In such cases, the parties filing refund applications have to be regulated and restricted to the time limit provided under the Act. The Supreme Court has upheld the decision of this Tribunal reported in 1983 (13) E.L.T. 1026 in the case of Miles India Ltd., V. Appellate Collector of Customs. It was held ....
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....and the same is opposed to legal precedents and the same is not justified. It has been also argued that in the present case, the duty of the customs payable on the transaction in question under the statute is only Rs. 4,743/- and therefore, the payment of duty over and above the aforesaid amount paid by the appellant is also beyond the statute and thus, retention of the same excess amount by the respondent- Authority is without authority of law. The learned Counsel has also placed reliance upon the following judgments: (i) Commissioner OF Central Excise (Appeals) Vs. KVR Construction reported in 2012 (26) STR 195 (KAR) (ii) Geogit BNP Paribhas Financial Services Ltd. Vs. CCE reported in 2015 (39) STR 706. (iii) Hind Agro Industries Limited Vs. Commissioner of Customs reported in 2008 (221) STR 336 (iv) G.B. Engineers Vs. UOI reported in 2016 (43) STR 345 (v) Joshi Technologies International Vs. UOI reported in 2016 (339) ELT 21 The learned Counsel has prayed for quashment of the order passed by the respondent-Authorities. 9. On the other hand, learned Counsel for the respondent-Revenue has vehemently argued before this Court....
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....funded the amount and the appellant Company vide its letter dated 31.12.2009 filed on 6.1.2010 before the Deputy Commissioner, sought for refund of excess duty. Meaning thereby, the prayer of M/s.BEML has been turned down on the ground of limitation and finally, the application submitted by the appellant-Company has also been rejected by the competent authority. The refund application preferred by the appellant-Company was rejected on the ground that the duty of the customs was paid on 7.3.2009 whereas the refund application was received on 6.6.2012 meaning thereby, not within the period of limitation under Section 27 of the said Act of 1962. The matter has travelled up to Tribunal and the Tribunal has decided against the appellant Company. 13. Section 27 of the said Act of 1962 reads as under: 27. Claim for refund of duty.- (1) Any person claiming refund of any duty or interest, -- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment o....
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.... duty and interest, if any, paid on such duty paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of duty and interest, if any, paid on such duty as determined by the Assistant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this subsection shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -- (a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the duty and ....
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....uty of customs payable on the transaction in question under the statute is Rs. 4,743/-, which has been admitted by the respondent and on account of erroneous calculation, the duty has been paid in excess to the tune of Rs. 42,26,975/-. The Authorities have turned down the claim of appellant on the ground of limitation. The claim of the appellant could have been corrected and the Tribunal has erred in observing that the payment of excess duty requires to be rectified under Section 154 of the said Act of 1962. The Authorities ought to have refunded the said excess amount to the appellant- Company either upon their application or on an application made by the importer. In the case of Mafatlal Industries Ltd. (supra), it has been held that in order to claim excess duty paid, which falls outside the purview of the said Act of 1962, the limitation provided under Section 27 is not applicable. Hence, the appellant-company is certainly entitled for refund of duty. 16. In the case of KVR Construction (supra), this Court relying upon the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) has held as under: "23. ...... When once there was no compu....
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....as erred in holding that all applications for refund of any payment mistakenly made to the customs authorities have to be made and processed under Section 27 of the Customs Act. This is also based on an erroneous understanding of the judgment of the Hon'ble Supreme Court in Assistant Collector of Customs v. Anam Electrical Manufacturing Co. - 1997 (90) E.L.T. 260 (S.C.) which is a format order disposing of the appeals forming part of the batch of matters in which the judgment of the Constitution Bench in Mafatlal Industries V. Union of India-1997 (89) E.L.T. 247 was rendered.............. ............ 16. There can be no manner of doubt that the custom authorities in the instant case were bound to refund the cess erroneously paid by the Appellants for the period from 15th January, 2001 till 19th February 2002 under a mistake of law. They had paid the cess when in fact no such cess was payable. There is no question of processing a claim of refund of such amount in terms of the Customs Act at all because the payment made mistakenly was not under that Act. In the circumstances, the period of limitation under Section 27 of the Act would not apply, as explained in Salonah Tea C....
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....aw. Under the circumstances, the provisions of the CE Act would not be applicable when the Appellant seeks refund of such amount. .............................. 11.3 In the light of the principles enunciated in the above decisions, having regard to the fact that in the facts of the present case, the refund is claimed on the ground that the amount was paid under a mistake of law and such claim being outside the purview of the enactment, can be made either by way of a suit or by way of a writ Appeal. Under the circumstances, the Appellant is justified in filing the present Appeal before this court against the order passed by the adjudicating authority rejecting its claim for refund of the amount paid under a mistake." 17. In the light of the law laid down by the Hon'ble Supreme Court and the other High Courts keeping in view the peculiar facts and circumstances of the case, it is crystal clear that when the customs duty is paid in excess, the department is liable to refund the same and the limitation provided under Section 27 of the said Act of 1962 will not be applicable. Therefore, the Tribunal has erred in law and fact, solely relying on Section 27 of the said....