TaxTMI 
TaxTMI 
2025 (5) TMI 421
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..../2023 dated April 17, 2023; (d) Pass any other order or orders as this Hon'ble Court deems fit and proper in the facts and circumstances of the present case; (e) Dispense with the service of the advance notices upon the respondents. (f) Exempt the petitioner from filing the certified/original copies of documents Annexures with permission to place on record true typed/photocopies of the same. (g) Costs of the writ petition may also be awarded in favour of the petitioner." 2. The petitioner is a Company incorporated under the Companies Act and engaged in commercial Solar Projects. 3. The present writ petition has been filed challenging the Refund Rejection Order No. 23-24/2023-24/Refund dated 21.11.2023 issued by respondent No. 1. 4. Ms. Priyanka Rathi, learned counsel representing the petitioner submits that the respondents had erroneously rejected the refund of the interest claimed by the petitioner on the ground that such refund is not admissible, in light of the Customs (Waiver of Interest) Third Order, 2023, Order No. 03/2023-Customs (NT) dated 17.04.2023 ("Customs Order") read with Section 27 of the Customs Act, 1962 (hereinafter ref....
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.... 17.04.2023 (Annexure-7), issued by the concerned Director, which noted that the technical difficulties to a large extent had been substantially resolved by 13.04.2023. 4.8 Learned counsel further submits that the language of the order clearly indicates that when the notification dated 17.04.2023 was issued regarding technical difficulties on the Common Portal with authorized Banks, these technical issues had not been fully resolved. 4.9 Learned counsel also submits that once the bill of entries were returned, the necessary payments were made in accordance with the aforementioned notifications read in conjunction with Section 47 of the Act of 1962, and thus, the waiver of interest ought to have been granted. 4.10 Learned counsel further submits that any difficulty in processing the payment due to technical glitches on the part of the respondents cannot be attributed to the petitioner for the purpose of levying interest. 4.11 Learned counsel has highlighted from the order dated 17.04.2023 that the waiver contained in the order was to be given effect from the date when system inability at the Common Portal was resolved, as certified by the Director General of Systems (for....
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....ct Taxes and Customs was authorized to waive interest payable under Section 47 (2) of the Act of 1962 until the date when the system inability was fully resolved. 5.2 Learned counsel contends that since the bill of entry, on which, the duty payment for the specific bill of entry was initiated after 13.04.2023 (on 20.04.2023), therefore, the order in question will not help the petitioner. 5.3 Learned counsel further submits that the circular dated 17.04.2023 was only applicable for the interest payable under 47 (2) of the Act of 1962 for the period from 01.04.2023 upto and including 13.04.2023 in respect of such goods where the payment of import duty was to be made from the amount available in ECL. 5.4 Learned counsel also submits that Section 47 (2) of the Act of 1962, stipulates that once the bill of entry is returned and the payment has to be made within one day, as prescribed under Section Section 47 of the Act of 1962. 6. Heard learned counsel for the parties at length as well as perused the material available on record. 7. This Court finds that the petitioner being a Company and an importer was seeking a refund claim under the Customs (Waiver of Interest) Third ....
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....l Government, by notification in the Official Gazette." 10. This Court has also seen Section 27 of the Act of 1962 whereby any person can claim refund of any duty or interest paid by him. Section 27 of the Act of 1962 is reproduced hereunder: "[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: Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such application shall be deemed to have been made under sub-section (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. ....
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.... such duty] paid by the importer, [or the exporter, as the case may be] if he had not passed on the incidence of such 3[duty and interest, if any, paid on such duty] to any other person; (b) the 3[duty and interest, if any, paid on such duty] on imports made by an individual for his personal use; (c) the 1[duty and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such 1[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 1[duty and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify; [(g) the duty paid in excess by the importer before an order permitting clearance of goods for home consumption is made where- (i) such excess payment of duty is evident from the bill of entry in the case of self-assessed bill of entry; or (ii) the duty actually payable is reflected in the reassessed bill of entry in the case of reassessment:] ....
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....admittedly were there, but removed to the large extent by 13.04.2023, but the authority in its order itself stipulated that the duty of the interest which has been paid shall be open for waiver from the date of removal of such system inability at the Common Portal as certified by the D.G. Systems. Para 3 of the order dated 17.04.2023 at Page 78 (Annexure-7) reads as follows: "3. The waiver contained in this Order shall be given effect if the following conditions are fulfilled: (a) the duty and interest has been paid within 3 days (including holidays) from the date of removal of such system inability at the Common Portal, which shall be certified by the DG Systems. (b) the importer undertakes at the port of import to not pass on the incidence of such interest paid; and (c) the provisions of section 27 of Customs Act 1962 shall govern the consequential refund of such interest paid." 13. This Court finds that the advisory issued by the D.G. Systems which is the backbone of the determination of the date of the technical glitches which would be there in the implementation of the ECL facility, which require the D.G. Systems to pronounce and certify ....
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....s get registered on ICEGATE and receive the communication from ICEGATE HelpDesk on the registered e-mail Id of the IEC user containing the credentials for logging into the ICEGATE portal." 15. The aforementioned advisory thus, clearly envisages that for ICEGATE registered users, the date of removal of the system inability, in context to the third order dated 17.04.2023 would be the date of issue of advisory which is 27.07.2023. Thus, practically, the D.G. Systems has acknowledged that the technical glitches were existing till 27.07.2023. 16. This Court observes that provision of law under Section 47 of the Act of 1962 clearly provides for payment of import duty by the importer on the date of presentation of the bill of entry in case of self assessment and within one day (excluding holidays) from the date on which the bill of entry is returned to him by the proper officer for payment of duty in the case of assessment, reassessment or provisional assessment. 17. In this case, the petitioner has been able to demonstrate that bill of entry had been returned on 19.04.2023 whereas within 24 hours, a genuine effort to make the necessary payments vide Annexure-8 were made and in p....