TaxTMI 
TaxTMI 
2023 (9) TMI 199
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....e Petitioner in support of the Petition. 2. The Petitioner, being a company incorporated under the Companies Act, 1956, engaged in the business of designing, manufacturing and distributing, importing various raw materials to manufacture and distribute exhaust after treatment systems. While importing the raw material, vide three bills of entry no. 2297141, 2297232 and 2297331 respectively, Petitioner paid IGST of Rs. 38,90,832/- on 5 July 2017. Thereafter, Petitioner paid an amount of Rs. 42,08,551/- on 11 July 2017 in respect of the three bills of entry. 3. It is submitted on behalf of the Petitioner that, in 2019, while conducting an internal audit, the Chartered Accountant of the Petitioner viz. U.V. Bodas & Co. noticed the mistake that Petitioner had paid an excess customs duty of Rs. 38,90,832/- by making payment of Rs. 42,08,551/- on 11 July 2017 instead of a differential of Rs. 3,17,719/-. 4. Thereafter, Petitioner engaged with the Customs Department. By an email dated 10 July 2019 from the Icegate Service Manager addressed to Petitioner regarding pending confirmation of the payment made by the Petitioner, Petitioner was informed that Petitioner's issue had been reso....
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....fund application it is found that: (III) The duty paid against these Bs/E is in July, 2017 and you have filed the refund in this Section on 24.10.2019 for the same. And as per Section 27 of the Customs Act, 1962: 27. Claim for refund of duty;- 3[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 of such duty or interest the refund claim should be filed within one year after payment of duty. In the present case the refund claim filed by you is Time Barred and is not sustainable as per Section 27 of the Customs Act, 1962. Therefore, you are requested to collect your documents. (Vinod Nautiyal) Asstt. Commissioner of Customs Refund Section,ACC, Mumbai." 8. Aggrieved by the aforesaid order of rejection of the claim for refund of excess duty paid, Petitioner has filed this Petition on 14 September 2020 seeking to quash and set aside the said order with further direct....
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.... Petitioner by speed post on 18 November 2019; thereafter, in view of the surge in the Covid -19 virus there was a lock down imposed in the country from March 2020; Petitioner has filed the Writ Petition on 14 September 2020 and although it would appear that the Writ Petition has been filed three years after the date of the excess payment on 11 July 2017, however, in view of the suo- moto decision of the Supreme Court with regard to the extension of limitation period due to Covid, the intervening period from 15 March 2020 to 28 February 2022 stands excluded and therefore, the writ petition has been filed within a period of three years from the date of excess payment and within a few months from the date of receipt of communication rejecting the request of Petitioner. Therefore, there is no laches in filing the Writ Petition. 11. Learned Counsel draws the attention of this Court to the decisions of the Hon'ble Apex Court in the case of Vedanta Limited vs. Commissioner of Customs (Port) and Another (2017) 12 SCC 744 and Salonah Tea Co. Limited and Others vs. Superintendent of Taxes, Nowgong and Others (1988) 1 SCC 401 in support of his contentions. 12. The Respondents have oppo....
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....efund claim of Petitioner was appealable before the Commissioner (Appeals) under the provisions of Section 128 of the Customs Act. However, the appeal was to be filed within a period of sixty days and the Commissioner (Appeals) had power to condone the delay for further period of only thirty days. However, the Petitioner has failed to file the appeal within the maximum period of ninety days, which expired on 16 February 2020, considering that the impugned order was dated 8 November 2019. Learned Senior Counsel would submit that even if the date of receipt of the impugned order i.e. 8 November 2019 was considered, even then the appeal is time barred. He would submit that the said period of ninety days has expired much before the date of 15 March 2020 and therefore, the benefit of the suo moto order of the Hon'ble Apex Court extending or excluding the time period between 15 March 2020 and 28 February 2022 on account of the Covid- 19 pandemic would not be available to the Petitioner. Learned Senior Counsel, therefore, submits that the order has attained the finality and cannot be re-opened in writ jurisdiction and therefore Petition is liable to be rejected on this ground alone. ....
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....ion of India and Ors. R/Special Civil Application No. 2239 of 2019 dated 28 July 2021 6. Vedanta Limited Vs. Commissioner of Customs (Port) and Anr. (supra) 7. Commissioner of Income Tax Vs. Velingkar Brothers. 2007(3) Mh. L. J. 8. Guru Charan Industrial Works vs. Union of India and Ors. (1988) 33 ELT 648 9. Collector of Central Excise, Chandigarh Vs. M/s Daoba Co- Operative Sugar Mills Ltd., Jalandhar. (supra). 10. Assistant Commissioner (CT) LTU, Kakinada and Ors. Vs. Glaxo Smith Kline Consumer Health care Limited. (supra). 11. Mafatlal Industries Ltd. and Anr. Vs. Union of India and Ors. (1997) 5 SCC 536. 19. After taking us through the aforesaid decisions, Mr. Dada, would submit that if monies including duty or tax or cess are paid under a bonafide mistake of law or fact then the limitation under the provisions of Section 11-B of the Excise Act or under Section 27 of the Customs Act would not apply and the claim for return of the same is to be made within the time prescribed under the general law of limitation from the date of discovery or knowledge of the said bonafide mistake. 20. A perusal of the decisions in the ca....
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....e that the duty amount of Rs. 17,25,172/- was paid twice through oversight and mistake and therefore, the same was liable to be refunded. It was argued on behalf of the Petitioner that Petitioner was supposed to pay only the customs duty of Rs. 77,82,771/-, however, through oversight and bonafide mistake an amount of Rs. 17,25,172/- came to be added, which was already paid on 11 April 2016 for another consignment claiming that this additional amount paid was not a duty nor a claim of any benefits under any other head under the customs law but merely a mistake committed by Petitioner in paying duty for some goods on two occasions and therefore, the same could not be treated as duty as referred to in Section 27 of the Customs Act and therefore the limitation thereunder would not be applicable. After hearing the parties, the Gujarat High Court recorded that the aforesaid facts were undisputed, however, because of the bonafide mistake committed on the part of Petitioner he added the amount of Rs. 17,25,172/-, which was already paid towards customs duty just prior to one day before the second payment and that it was also not in dispute that the excess amount was paid by the Petitioner a....
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....in payment of excess or double duty. 26. This Writ Petition has been filed inter alia submitting as under: "3. The present Petition seeks to challenge the arbitrary inaction on the part of Respondent nos. 2 and 3 for issuing letter dated 08.11.2019 (herein after referred as "impugned order") rejecting the refund application filed by the Petitioner for the amount paid in twice against the same import vide three bill of entries nos. 2297141, 2297232 and 2297331 respectively. The Respondent no. 3 has rejected the refund application of the Petitioner on the ground that, the refund application filed by the Petitioner is time barred in pursuant to Section 27 of the Customs Act, 1962. 4. The Petitioner is constrained to file this Writ Petition challenging the impugned order issued by Respondent no. 3, for rejecting the lawful refund claim of the Petitioner to which he is legally entitled. Also, the law does not prescribe any legal remedy to the Petitioner to challenge the veracity of the letter rejecting the refund claim before any appellate authority. Therefore, the Petitioner has no other option but to file the instant Writ Petition. 5.1 The Petitioner was ....
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.... be challenged before any appellate authority as the law doesn't prescribe any provision for the challenging the same. 5.8 The Petitioner states that the Respondent no. 3 has acted arbitrarily under the guise of discretion and has infringed the constitutional right of the Petitioner depriving him of its rightful amount of refund claim against the excess amount paid for imports made. 5.9 Being aggrieved, by inaction and arbitrariness of the Respondent no. 3, the petitioner begs to prefer the present Writ Petition under Article 226 of the Constitution of India, inter alia, on the following amongst other grounds : GROUNDS b. The Respondent failed to acknowledge the fact that, the amount paid in excess by the Petitioner against the import made cannot take the nature of duty as prescribed under Section 27 of the Customs Act, 1962 and hence the applicability of Section 27 of the Customs Act, 1962 does not arise. e. According to Section 27 sub-section 3(1) of the Customs Act, 1962, 'Any person claiming refund of any duty or interest' : Paid by him or borne by him, may make an application in such form and such manner as may be prescribed for suc....
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....n for an amount which was paid twice and which was a deposit and the rejection on the ground of limitation is invalid and illegal as the same cannot be challenged before any Appellate Authority as the law does not prescribe any provision for challenging the same and therefore the Respondent no. 3 has acted arbitrarily depriving the Petitioner of its rightful amount of refund claimed against the excess duty amount paid for the imports made. 28. Except for saying in paragraph 6 of the Petition, that the Petitioner is seeking refund of duty being paid twice by mistake, and that amount paid in excess by the Petitioner cannot take the nature of duty as prescribed in Section 27 of the Customs Act and that the impugned order is violative of Article 265 of the Constitution of India, there is no pleading or any material to show or establish or demonstrate that the said mistake was bonafide. As elucidated above, if the act of having paid excess duty has been a mistake, then the same should have been a bonafide mistake. 29. Petitioner, as noted above, is a corporate involved in various kinds of businesses, having eight divisions expected to be guided and advised by a professional set of....
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.... : 19041343AAAALU2933" 31. All that the Certificate states is that based on verification of such records as produced to them and as per the information and explanation given to them by the Petitioner, they have certified that the Company filed a claim for refund of the IGST paid as the same was paid twice against the import of the components. That as per the accounting practice, the said IGST has not been added to the cost of manufacture of the end product nor any ITC credit has been availed of; that the amount of IGST has been shown as a receivable in the general ledger of the Company and therefore the said refund claimed does not amount to unjust enrichment. Nowhere does the Certificate state as to the circumstances under which such a mistake had occurred, what efforts were taken to exercise due care and diligence so that the said mistake could be said to be a bona fide mistake; it has not even been considered necessary to mention or explain the same in the said certificate. There is no whisper of the time or the circumstances under which the said mistake was discovered by the Petitioners. It appears that the said certificate had been issued at the behest of the Petitioner its....
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....oever, on the fact that Petitioner, despite being a public listed company, could not have discovered the lapse in time. What due care and diligence was exercised by Petitioner or its Management is also not specified. And after the mistake was discovered then why was an appeal not filed in time. This is nothing short of negligence; Petitioner has not been able to demonstrate that the mistake was bonafide. In our view, such lapses cannot be condoned for considering the Petitioner's prayers. 35. Further, it is not in dispute that the Petitioner itself has in the facts of this case considered the payment made to be excess duty and also made an application under Section 27 of the Customs Act for refund of duty. Therefore, now to say that the amount paid in excess by the Petitioner against import made cannot take the nature of duty as prescribed under Section 27 of the Customs Act or that the impugned order was therefore violative of Article 265 of the Constitution of India would in our view not be tenable in the facts of this case. Even an admission by the Respondents that excess duty has been paid would in our view not make any difference. 36.1 The Petitioner has relied upon the ....
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....titioner has been unable to establish that the said mistake was a bonafide mistake of law or fact. To invoke remedy under Article 226, the Petitioner has to come with clean hands in addition to the mistake being bonafide, which we have already held that the Petitioner has not. 38. The decision of the Apex Court in the case of Collector of Central Excise, Chandigarh Vs. M/s Doaba Co-operative Sugar Mills Ltd. (supra) in our view would assist the case of the Respondents. Where the duty has been levied without authority of law or without reference to any statutory authority or the specific provisions of the Act and the Rules framed thereunder have no application, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light, but as held in the said decision, in making claims for refund before the departmental authority, an assessee is bound within the four corners of the statute and the Rules framed thereunder must be adhered to; the authorities functioning under the Customs Act are bound by the provisions of the Customs Act and if the proceedings are taken under the Customs Act by the department, ....
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.... (1), as it stood before the date on which the Finance Bill, 2011, receives the assent of the President and the same shall be dealt with in accordance with the provisions of sub-section (2): PROVIDED FURTHER that the limitation of one year shall not apply where any duty or interest has been paid under protest: PROVIDED ALSO that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded. .............. (emphasis supplied)" 43. Section 27 of the Customs Act, as above, clearly requires that any person claiming refund of any duty is to make an application in the form or manner as may be prescribed before the expiry of one year from the date of payment of such duty or interest. In the present case, the petitioner has filed refund application on 30.07.2019, after more than two years of payment of duty and therefore, even if the date of 11.7.2017 is considered as the payment of duty, the one year would end on 10 July 2018 which is clearly beyond the period of one year as contemplated by the Customs Act and is barred by limitation. Paragraph 108(i) of the decision of the Hon'ble Supreme Court in the case of....
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....ke an application in prescribed form and manner for the refund before the expiry of one year from date of payment of such duty / interest. No doubt the expression which was used in Section 27(1)(i) that, "In pursuance of order of assessment has been deleted from Section 27 due to the introduction of provision of self-assessment, however, self-assessment is an order of assessment even though the deletion has been effected. The Hon'ble Supreme Court also went on to hold that the provision of refund is more or less in the nature of execution proceedings and it was not open to the authority which processes the refund to make a fresh assessment on merits and to correct assessment on the basis of mistake or otherwise. 44.3 Addressing the contention that no appeal lies against the order of self-assessment, the Hon'ble Supreme Court quoting Section 128 of Customs Act, held that as the order of self-assessment nonetheless is an assessment order passed under the said Act obviously it would be appealable by any person aggrieved thereby. The Hon'ble Supreme Court concluded that the provision of Section 27 cannot be invoked in the absence of amendment or modification having being made in bil....
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....t deem it necessary to consider the issue of maintainability of the refund application, which has been rejected on the ground of limitation. 45. Mr. Jetly, learned Counsel for the Respondents, has also submitted that under Section 128 of the Customs Act the order of rejection is an appeallable order before the Commissioner of Appeals and the Appeal was to be filed within a period of sixty days and the Commissioner (Appeals) has power to condone the delay for a further period of only thirty days upon sufficient cause being shown. This means that the Petitioner had ninety days to file the Appeal which period considering the date of the impugned order as 8 November 2019 would expire on 16 February 2020. Even if the date of receipt of the impugned order i.e. 18 November 2019 was to be considered, even then the Appeal would be time barred. 46. In Assistant Commissioner (CT) LTU, Kakinada and others Vs. Glaxo Smith Kline Consumer Health Care Limited (supra), the Hon'ble Supreme Court has categorically observed that if a writ petitioner chooses to approach the High Court after expiry of maximum limitation period in the statute, the High Court cannot disregard the statutory perio....