TaxTMI 
TaxTMI 
2021 (8) TMI 312
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....sued by the Respondent No.2 and Communication F.No.S/6-Misc./Refund/2017-18 dated 18.10.2018 issued by the respondent No.3, by which, the respondents have refused to sanction and grant petitioner's refund claim towards excess custom duty to the tune of Rs. 17,25,172/-. The petitioner has further prayed to direct the respondent authorities to pay the said amount with interest thereon at the rate of 18% per annum from 12/04/2016 till the date of payment of the said refund to the petitioners. In response to the Notice issued by this Court, the respondent Nos.2 & 3 have appeared through learned advocate Mr.Priyank Lodha and have filed affidavit-in-reply dated 17/06/2019 and opposed to grant any relief, as prayed for, by the petitioner. The case put forward by the petitioner, is as under: That the petitioner, a company, incorporated under the Companies Act,1956, is engaged inter alia, in the manufacture, exports and imports the goods. As per the provisions of Central Excise Tariff Act,1985, when the goods are imported by the petitioner, appropriate customs duties are paid to the respondent authorities. The petitioner company imported certain goods, for which, total amount of Rs....
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....pport of his submissions, he has relied upon following decisions : (i) Swastik Sanitarywares Ltd. Vs. Union of India reported in 2013 (296) E.L.T. 321 (Guj.) (ii) National Institute of Public Finance & Policy Vs. Commissioner of Service Tax reported in 2019 (20) G.S.T.L. 330 (Del.) (iii) Parijat Construction Vs. Commissioner of Central Excise, Nashik reported in 2018 (359) E.L.T. 113 (Bom.) (iv) 3E Infotech Vs. CESTAT, Chennai reported in 2018(18) G.S.T.L. 410 (Mad.) (v) Joshi Technologies International Vs. Union of India reported in 2016 (339) E.L.T. 21 (Guj.) (vi) Greaves International Ltd. & Anr. Vs. UOI & Ors. reported in 1992 (39) ECR 327 (Bombay) (vii) Oil & Natural Gas Corporation Ltd. Vs. Union of India reported in 2017 (354) E.L.T. 577 (Guj.) (viii) Salonah Tea Co. Ltd. Vs. Supt. of Taxes, Nowgong reported in (1988) 1 SCC 401 (ix) M/s.Comsol Energy Private Limited V/s. State of Gujarat delivered by Division Bench of this Court on 21/12/2020 in Special Civil Application No.11905 of 2020. By taking us through the ratio laid down by this court in the case of Swastik Sanitary wares Ltd. (supra)....
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....upon the decision rendered in the case of Joshi Technologies International (Supra). We have heard learned advocates appearing for the respective parties. It is an undisputed fact that the petitioner paid custom duty to the tune of Rs. 17,25,172/- for the goods imported on 11/04/2016. Again he paid an amount to the tune of Rs. 95,07,943/- on 12/04/2016 for different consignment imported by the petitioner. The petitioner was supposed to pay custom duty to the tune of Rs. 77,82,771/-, however bonafide mistake committed on the part of the petitioner, he added the amount of Rs. 17,25,172/-, which was already paid towards customs duty just prior to one day before second payment. It is not in dispute that the excess amount to the tune of Rs. 17,25,172/- was paid by the petitioner. The authority has rejected the claim only on the ground of limitation. Relevant provisions of Sections 27 & 27A of the Customs Act, are reproduced 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 Commissio....
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....he case of Swastik Sanitaryware (supra), this aspect with regard to similar provision under Excise Act, has been dealt with in Para-17 and it has been held by relying upon unreported decision dated 05/07/2012 rendered by this Court in the case of C.C. Patel & Associates Pvt. Ltd. Vs. Union of India in Special Civil Application No.1861 of 2005. Para-17 of the aforesaid judgement read as under: "17. In a recent judgment in case of C.C. Patel & Associates Pvt. Ltd. (supra), this court had occasion to deal with somewhat similar situation where the petitioner had deposited service tax twice which was not being refunded by the Department. In that context, it was observed as under:- (12) We fail to see how the department can with hold such refund. We say so for several reasons. Firstly, we notice that under sub-section(3) of section 68, the time available to a service provider such as the petitioner for depositing with the Government service tax though not collected from the service recipient was 75 days from the end of the month when such service was provided. This is in contrast to the duty to be deposited by a service provider upon actual collection by the 15th of the....
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....d come into play. The same issue has been dealt with by Division Bench of this Court in the case of M/s.Comsol Energy Private Limited (supra). Para9 of the aforesaid judgement is relevant, which is reproduced as under : "9. Similar situation arose in the case of Joshi Technology International vs. Union of India, reported in 2016 (339) ELT 21 (Guj), wherein this Court held that the statutory time limit provided under Section 11B of the Central Excise Act is not applicable to the claim of refund of duty paid under mistake as the same was paid under mistake of law and, therefore, such claim is considered as outside purview of enactment. It was held that general provisions provided under the Limitation Act is applicable to claim refund of such duty. The relevant paragraphs of the decision are given as under : "14.4 Thus, in view of the principles enunciated by the Supreme Court in Salonah Tea Co. Ltd. v. Superintendent of Taxes, Nowgong (supra), in case where money is paid by mistake, the period of limitation prescribed is three years from the date when the mistake was known. Besides, section 17 of the Limitation Act inter alia provides that when a suit or application is for reli....
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....en incorporated in the OID Act for collection and refund of the cess levied thereunder, it cannot be inferred that the Oil Cess imposed under the provisions of the OID Act assumes the character of central excise duty. The finding recorded by the adjudicating authority that the Oil Cess is in the nature of excise duty, is erroneous and contrary to the law laid down by this court in Commissioner v. Sahakari Khand Udyog Mandli Ltd. (supra). -*** -*** -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 petition. The petitioner was, therefore, justified in filing the present petition before this court against the order passed by the adjudicating authority rejecting its claim for refund of the amount paid under a mistake. - Since Oil Cess is not a duty of excise, the amount paid by the petitioner by way of Education Cess and Secondary and Higher Secondary Education Cess, cannot in any manner be said to be a duty of excise inasmuch as what was paid by the petitioner was not a duty of....