TaxTMI 
TaxTMI 
2024 (7) TMI 1078
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....ms Law. Therefore, if the provisions of Section 27 is not applicable, the proper officer will also not be competent to entertain or grant the refund of the claim for refund that has been made by the appellant before the proper officer. Since statutory authorities cannot function in vacuum, the proposition that Section 27 is not applicable is without any legal basis, which will be self-defeating and also against interest of the appellant themselves. 4. Section 27 of the Customs Act, 1962 prescribed the condition for filing an application for refund before the expiry of one year, from the date of payment, which is the outer limit for filing any claim for refund under the provisions of the Act. The proviso to Section 27 stated that the limitation of one year shall not apply where any duty or interest has been paid under protest, and as such, in this particular case, the limitation period of one year from the date of deposit will not be applicable as the amounts were deposited under protest. The protest was taken up further by the appellant in the form of appeal before the Commissioner (Appeals), which was concluded by rejection of their appeal by the Commissioner (Appeals) in....
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.... find that the refund application was clearly barred by limitation and the Dy. Commissioner of Customs, Noida is correct in rejecting the refund claim on the grounds of limitation which is also found to be legal and proper, and does not require any interference. The failure of the appellant to take timely action as per the provision of Section 27 of Customs Act, 1962 has become fatal to them in the given facts and circumstances of the case. 8 Accordingly, I reject appeal bearing No. 111/CUS/ NOIDA/ APPL/NCUS/2020-21 filed by M/s Ratan Textiles Pvt. Ltd., F-200-201, EPIP, Sitapur. Jaipur-302022 (Rajasthan) and upheld the Order-in-Original No. 11/Refund/Noida Customs/2020 dated 29.04.2020." 2.1 The Appellant has filed a refund claim for refund of Rs 1,45,000/- vide their letter dated 10.07.2019 received by the jurisdictional officer on 26.07.2019, in pursuance of Tribunal's Final Order No. 71646-71650/2017 dated 10.11.2017. Tribunal had held as follows:- "5. From perusal of the show cause notice, I find that no valuation of the goods proposed to be exported have been done as a result of the purported inspection. Thus, I find that the allegation of overvaluation i....
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.... favour of appellants 3.3 Learned Authorized Representative reiterates the findings recorded in the impugned order. 4.1 I have considered the impugned order along with submissions made in the appeal and during the course of arguments. 4.2 The chronology of events leading to the refund claims in dispute is as depicted in the table below:- Sr. No. DATES EVENTS 1 20.09.2011 Shipping Bill No 5483931 dt. 20.09.2011 for export of 100% Cotton Powerloom Printed Woven Made up was filed by the Appellant. The goods were confiscated by the Department under the pretext of mis-declaration and an option to redeem the same was given to the Appellant only on payment of a redemption fine and a penalty. The appellant deposited the fine and penalty. 2 10.11.2017 Being aggrieved by the Order for imposition of redemption fine and penalty, an appeal was filed by the Appellant before the Commissioner (Appeals). Commissioner (Appeals) upheld the Order-in-Original vide Order in Appeal No 166/Cus/Appl/Noida/2012 dtd. 21.06.2012. An appeal was filed before Tribunal and the said appeal was allowed with consequential relief vide Order bearing FO No. 71646-71650/2017 dated 10.....
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....succeeded partly before the Tribunal. Accordingly, amount reversed was claimed as a refund. I find that this is not a case of refund of excise duty paid on final product whereas originally it is an amount of Cenvat credit which was reversed under protest and on succeeding, the appellant claimed refund. In my considered view, even there is no need of filing refund claim in case of succeeding in a matter of dispute on Cenvat credit. In the present case, even if the amount is towards reversal of Cenvat credit but it is as good as availment of fresh Cenvat credit therefore unjust enrichment is not applicable for availment of Cenvat credit. In the present case also refund of Cenvat credit need not to be undergone the test of unjust enrichment. The judgment cited by the ld. Counsel supports the case of the appellant. I therefore set aside the impugned order and allow the appeal of the appellant." 4.5 In case of USV Ltd. [2016 (45) S.T.R. 83 (Tri. - Mumbai)] following has been held: "5. ..... The judgments relied upon by the ld. Counsel are applicable as in those judgment, it has been held that the refund of any amount deposited during the investigation and proceedings the lim....
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....assessee with interest. The Tribunal had in diverse orders issued directions for the payment of interest on refunds of pre-deposit. Before the Supreme Court, the Solicitor General stated that the Central Board of Excise and Customs proposed to issue a circular in connection with the payment of interest on all such pre-deposits, a draft of which was placed on the record of the Supreme Court. The Supreme Court directed the payment of interest in terms of the draft circular. A circular was issued by the CBEC on 8 December, 2004 reiterating that in terms of the directions of the Supreme Court, pre-deposits must be returned within three months from the date of the order passed by the Appellate Tribunal or court unless there was a stay on the order by a superior court and that the Board had decided to implement CESTAT orders already passed for payment of interest in compliance of which interest payable would be paid forthwith." 4.9 When fines and penalties are being set aside Revenue is duty bound to refund the said amounts as all for implementation of the order of the Appellate Authority. Such implementation of the order Appellate Authority could not have been fully closed by relying....
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.... refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; (c) where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment]." 4.10 In case of Cooper Pharma [2017 (357) E.L.T. 929 (T-Del)] following was held: "6. I find that as a consequence of the order dated 18-8-2004 [2004 (174) E.L.T. 143 (Tribunal)] passed by the Tribunal, the appellant has filed the formal application before the jurisdictional authorities, claiming refund of Rs. 1,50,000/- paid as penalty. Section 11B ibid deals with filing of refund application in respect of Central Excise duty. Since there is no specific mention about refund of penalty in Section 11B ibid, I am of the view that time limit prescribed therein would not have any application for sanction of such refund amount. Further, the amount in question was recovered by the Department un....
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....t in District Mining Officer v. Tata Iron and Steel Co., (2001) 7 SCC 358, may be noticed: "... A statute is an edict of the Legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the Court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises the difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. ....
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....n leads to anomaly and absurdity, the Court having regard to the hardship and consequences that flow from such a provision can even explain the true intention of the legislation. Having observed general principles applicable to statutory interpretation, it is now time to consider rules of interpretation with respect to taxation. 21. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation. The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocent might become victims of discretionary decision-making. Insofar as taxation statutes are concerned, Article 265 of the Constitution [265. Taxes not to be imposed save by authority of law - No tax shall be levied or collected except by authority of law.] prohibits the State from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to be interpreted strictly because State cannot at their whims and fancies burden the citizens without authority of law. In other words, when competent Legislature mandates taxing certain persons/certain objects in certain circumsta....
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....ifest purpose of the legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case.' Wiliam M. Lile et al., Brief Making and the use of Law Books 343 (Roger W. Cooley & Charles Lesly Ames eds., 3d ed. 1914). "Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meaning may be wider than the other, and the strict (i.e., narrow) sense is not necessarily the strict (i.e., literal) sense." John Salmond, Jurisprudence 171 n. (t) (Glanville L. Williams ed., 10th ed. 1947). 24. As contended by Ms. Pinky Anand, Learned Additional Solicitor General, the principle of literal interpretation and the principle of strict interpretation are sometimes used interchangeably. This principle, however, may not be sustainable in all contexts and situations. There is certainly scope to sustain an argument that all cases of literal interpretation would involve strict rule of interpretation, but strict rule may not necessarily involve the former, especially in the area of taxation. The decision of this Court in Punjab Land Development and Reclamation Corp....
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....atute. 26. Justice G.P. Singh, in his treatise 'Principles of Statutory Interpretation' (14th ed. 2016 p.-879) after referring to Re, Micklethwait, (1885) 11 Ex 452; Partington v. A.G., (1869) LR 4 HL 100; Rajasthan Rajya Sahakari Spinning & Ginning Mills Federation Ltd. v. Deputy CIT, Jaipur, (2014) 11 SCC 672, State Bank of Travancore v. Commissioner of Income Tax, (1986) 2 SCC 11 and Cape Brandy Syndicate v. IRC, (1921) 1 KB 64, summed up the law in the following manner- "A taxing statute is to be strictly construed. The well-established rule in the familiar words of LORD WENSLEYDALE, reaffirmed by LORD HALSBURY AND LORD SIMONDS, means : 'The subject is not to be taxed without clear words for that purpose : and also that every Act of Parliament must be read according to the natural construction of its words. In a classic passage LORD CAIRNS stated the principle thus : "If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however a....
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....R 1958 SC 341]. If the Legislature fails to express itself clearly and the taxpayer escapes by not being brought within the letter of the law, no question of unjustness as such arises [CIT v. Jalgaon Electric Supply Co., AIR 1960 SC 1182]. But equitable considerations are not relevant in construing a taxing statute, [CIT, W.B. v. Central India Industries, AIR 1972 SC 397], and similarly logic or reason cannot be of much avail in interpreting a taxing statute [Azam Jha v. Expenditure Tax Officer, Hyderabad, AIR 1972 SC 2319]. It is well-settled that in the field of taxation, hardship or equity has no role to play in determining eligibility to tax and it is for the Legislature to determine the same [Kapil Mohan v. Commr. of Income Tax, Delhi, AIR 1999 SC 573]. Similarly, hardship or equity is not relevant in interpreting provisions imposing stamp duty, which is a tax, and the Court should not concern itself with the intention of the Legislature when the language expressing such intention is plain and unambiguous [State of Madhya Pradesh v. Rakesh Kohli & Anr., (2012) 6 SCC 312]. But just as reliance upon equity does not avail an assessee, so it does not avail the Revenue." T....
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....ellant under Rule 6 (3) of CCR was in the nature of revenue deposit. Further, it is an admitted fact that such amount was reversibly deposited under protest." 4.13 In case of Ajudhia Sugar Mills Ltd. [2018 (364) ELT 437 (T-All)] following was held: "6. The appellant's contention is that the debit was made by them under protest in which case the limitation would not apply. They have contested the finding of the appellate authority that the amount was not paid under protest, as factually incorrect. Inasmuch as the debits were made by them under the directions of the Audit Officer, the same was not voluntary payment and has to be treated as having been reversed under protest. 7. I find that the provisions of Section 11B provide a period of one year, for claiming refund, from the relevant date. The relevant date also stands prescribed in the said Section. However, if the duties have been paid under protest, the period of one year is not applicable. The appellant's contention is that the demand was paid under protest and as such limitation would not be applicable." 4.14 I do not find any merits in the submissions made to the fact that the provisions of Section 27....