TaxTMI 
TaxTMI 
2023 (1) TMI 395
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....iling SAD Refund Claimed Rs. 1 7057836 dt 13.10.16 2016292474 Dt. 15.10.2016 26.11.16 282030.10 22.02.2018 282030.10 2 7202544dt. 24.10.16 2016412396 Dt. 26.10.2016 05.12.16 149744.30 22.02.2018 149744.30 3 7202547 dt 24.10.16 2016412391 Dt. 26.10.2016 08.12.16 195097.70 22.02.2018 195097.70 4 7202549 dt 24.10.16 2016412394 Dt. 26.10.2016 08.12.16 192631.50 22.02.2018 192631.50 5 7832597 dt 15.12.16 2016892118 Dt. 16.12.2016 27.12.16 496514.60 22.02.2018 496514.60 6 8123757 dt 09.01.17 2017112137 Dt. 11.10.2017 17.01.17 688131.20 22.02.2018 688131.20 7 8191118 dt 16.01.17 2017160035 Dt. 16.01.2017 18.03.17 839226.10 22.02.2018 839226.10 TOTAL 2843375.50 28,43,375.50 2.2 Subsequently the documents of the appellant on 10.03.2017 and were returned to them on 11.01.2018. After the receipt of the seized documents appellant had filed these refund claims on 22.02.2018. These refund claims were adjudicated by the original authority as per the order referred to in para 1 above. Appeal filed by the appellant against this order has bee....
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....ered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 For rejecting the appeal, Commissioner (Appeals) has in his order observed as follows:- "9. I find that in the instant case, the refund claim has been filed after a lapse of more than one year. I find that condition 2(c) freezes the entitlement of refund and no refund application can be filed after the period of 1 year. It is a settled law that once a pre-condition is set out in a notification, it has to be observed in full of its validity. Further, the time limit for filing a refund /rebate claim is prescribed under See 27 of the Customs Act, 1962 which read as under: "Section 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 Asstt. Commissioner of Customs or Dy. Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest." 10. From the above, it is very much clear that the power to refund is found in Sec 27 of the Customs Act, 1962. The said....
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....tification." 13. In the view of the above, I find that the appellant could have filed claim for refund within one year. The reason stated by appellant that the officers of M&P Wing, Customs 1 (Prev.) had seized the Bs/E actually defeats the reason for delay. The appellant had imported the impugned goods vide seven Bs/E where 4 Bs/e pertain to the period October 2016, one of December 2016 and two of January 2017. The final sale of these goods were made in 2016 itself, barring two Bs/E of which the sale was effected in January 2017 and March 2017.. The Bs/e were seized by the officers on 06/07.3.2017. Thus, the appellant had more than one opportunity to file refund of SAD effected much before the date of seizure. Further, I find that the appellant could also have filed the claim based on the book of accounts well within the prescribed time limit. However, the claimant neither approached the jurisdictional Customs officer and stated the fact nor made an application in writing. I find the refund claim was deliberately filed late after a considerable time lapse, not just from the date of import but from the date of actual sale too." 4.3 Counsel for the appellant submitt....
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.... one year, from the date of payment of such duty or interest. Provided that ..... : Provided further ..... : Provided also ...... Explanation. - ....... (1A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person." 4.5 In the present case there is no denial of the fact that the appellant was not in position to file the refund claims within the prescribed period of limitation for the reason that the documents on the basis of which these refund claims were to be filed were under seizure and were seized prior to the expiry of the period of limitation. Both the lower authorities have observed that the refund claims could have been filed without these documents on the basis of the book of accounts maintained by the appellant. I do not find any merits in this observation in view of the specific provisions of Section 27 ....
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....Officer, has been made. Custom Manual, 2018 issued by Central Board of Indirect Taxes Chapter 14 - Refund at para 7 reads as follows: "7. Expeditious disposal of refund applications: 7.1 The procedure to ensure expeditious disposal of Customs duty refund applications and to enhance transparency in refund disbursement is as follows: (a) Receipt and acknowledgement of all refund applications: All refund applications made under Section 27 of the Customs Act, 1962 whether by post or courier or personal delivery, shall be received by the department and a simple receipt of having received the "refund application" shall be issued immediately. The receipt should make it clear that the application has not been scrutinized for its completeness. These applications are required to be scrutinized for their completeness within 10 working days of their receipt, for giving acknowledgement by the Proper Officer as per the Customs Refund Application (Form) Regulations, 1995. Hence, if any deficiency is found in the application or any document is required by the department, the same shall be informed at this stage of initial scrutiny itself within 10 working days of the ....
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.... placed by Revenue on provisions of section 11B of the Act read with paragraph No. 2.4 of the CBEC Manual cannot be accepted the same being contrary to the object and purpose of the scheme. It cannot be held that the petitioner was at fault in making the claim belatedly, because in fact the period of limitation has to be considered in light of availability of the requisite documents, i.e., from the said point of time. 21. The view adopted by the Revisional Authority that a departmental authority is bound by the prescribed period of limitation and cannot condone any delay also does not merit acceptance in light of what is stated hereinbefore. The Adjudicating Authority and the Revisional Authority have read the period of limitation divorced from sub-paragraph No. 2.4 of the CBEC Manual which has provided for a circumstance to mitigate the unwarranted hardship resulting from reading the provision of limitation in absolute terms. In other words, howsoever limited, an exception has been carved out in cases where the delay has occurred due to circumstances beyond control of the claimant assessee. In other words, in a case where the so called delay is on account of the lapse on ....
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....tation, and held that a conscious decision taken by Central Government dismissing application for refund as time barred is unjustified. In Exclusive steels Pvt. Ltd. v. Union of India, supra, also, a Division Bench of Gujarat High Court held that the only circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation would be where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department. 15. The judgment of the Supreme Court in Miles India Limited, supra, relied on by the Revenue, is not an effective and well discussed judgment on merits. It is merely an order allowing the appellant to withdraw the appeal. Therefore, this judgment cannot be of any help to the Revenue. Another judgment of the Supreme Court in Collector of C.E., Chandigarh v. Doaba Cooperative Sugar Mills - 1988 (37) E.L.T. 478 (S.C.), cited on behalf of the Revenue, rather helps the petitioner because in Para 6 of the judgment, the Supreme Court observed that where the duty has been levied without authority of law or without reference to any statutory authority or the specific prov....
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....mpossibilia" in filing of refund claims in time. According to the petitioners, they had to liaison with the Directorate of Revenue Intelligence to get copies of the Bills of Entries and since the Bills of Entries were not given to the petitioners in time, there was a delay in filing the refund claims. It is therefore submitted that seizure of documents by the Directorate of Revenue Intelligence cannot be against the petitioners. 16. On the other hand, it is the contention of the respondents that nothing prevented the petitioners from filing the refund claims in time. 17. The Directorate of Revenue Intelligence (DRI) therefore entertained a reasonable belief that there was large scale evasion of anti-dumping duty and therefore carried search on 27-2013 and seized records of the petitioner in W.P. Nos. 22385, 22386 & 34269 of 2016. 18. These included copies of the Bills of Entries, under which, the imported goods were cleared on payment of applicable duty. These seizures were purportedly in the exercise of powers vested under Section 110 of the Customs Act, 1962 by the officers of Directorate of Revenue Intelligence. Under sub-section 3 of the Section 110 o....
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.... of refund of Special Additional Duty paid under Section 5(3) of the Customs Tariff Act, 1975 are quashed and cases are remitted back to the second respondent to pass a fresh order of refund of the amounts paid by the petitioner at the time of import, if the said writ petitioner has otherwise satisfied the other requirements of Notification No. 102/2007-Cus., dated 14-9-2007 as amended by Notification No. 93/2008-Cus., dated 1-8-2008. Respondents shall pass orders on the balance refund claims within a period of three months from date of receipt of a copy of this order. 25. Insofar as the other petitioner in W.P. Nos. 22387 & 22388 of 2016 namely M/s. M.M. Enterprises is concerned, it is not clear whether the documents of the said petitioner were also seized by the officers of the Directorate of Revenue Intelligence on 2-7-2013, though letter dated 14-5-2015 of the Directorate of Revenue Intelligence addressed to the second respondent indicates the involvement of the said petitioner also in the alleged evasion of anti-dumping duty and that documents were seized from the premises of the said petitioner also. 26. However, in absence of specific documents to conclude ....