TaxTMI 
TaxTMI 
2025 (6) TMI 1195
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....Order dated 26th April, 2023 admitted the Appeal by formulating the following substantial questions of law: "(a) Whether the Tribunal was justified in holding that the importer was not even required to file refund claim of the Extra Duty Deposit made on pending finalization of the provisional assessment without filing an application for refund under Section 27 read with Section 18 of the Customs Act, 1962? (b) Whether in the facts and circumstances of the case and law, the Tribunal was justified in holding that the refund claim filed by the importer cannot be treated as barred by limitation as provided under Section 27 of the Customs Act, 1962 for claims filed after 2006?" 3. The brief facts of the case are that the Respondent-Assessee was engaged in the import of Silicon Electrical Steel of Cold Rolled Full Hard (unannealed). The Respondent-Assessee imported the goods from a related party and therefore the issue of valuation was taken up by Special Valuation Branch as per Circular No. 11/2001-Cus dated 23.02.2001. 3.1 As per the aforesaid Circular, the Respondent-Assessee was required to deposit 1% extra duty deposit as a safeguard for revenue during the pr....
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...."04. We have carefully considered the rival submissions. We find that the decision of Hon'ble High Court of Bombay in the case of BUSSA OVERSEAS AND PROPERTIES PVT. LTD (supra) was passed in significantly different set of facts. It is noticed that in the case of COMMISSIONER OF CUSTOMS (EXPORT) CHENNAI V/s. SAYONARA EXPORTS-2015 (321) ELT 583 (Mad.) was examining the following substantial questions of law:- "(i) Whether the Tribunal was right in holding that the 1st Respondent is entitled for automatic refund of the Extra Duty Deposit made pending finalisation of the provision assessment without filing an application for refund under Section 27 of the Customs Act, 1962? (ii) Whether the Tribunal is right in not considering the legal issue that there cannot be an order of refund without application and that the application should be within the time stipulated in the statute? (iii) Whether the extra duty deposit made by the 1st Respondent partakes the character of customs duty so as to attract the provisions of Section 27 of the Customs Act? (iv) Whether the claim of the Respondent for refund would be contrary to the decision of the Supreme Cou....
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....s Act defines the duty which reads as under:- "Section 2 (15) of the Customs Act, 1962 defines "duty" as a duty of customs that is leviable under the Act. This means it specifies that the term "duty" within the act refers to customs duties that are legally applicable under the provisions of the Customs Act." 6.1 Section 2 (15) of the Act duty means "duty" of customs leviable under this Act. 1% EDD to be deposited by the Assessee as per the aforesaid Circular is not a duty payable under the provisions of the Act. The Hon'ble Madras High Court in the earlier decision in the case of Sayonara Exports Pvt. Ltd. (Supra) after considering the decision of this Court in the case of Commissioner Vs. Hindalco Industries Ltd. reported in [2008 (231) E.L.T.36 (Guj.)] as well as the decision of the Delhi High Court in the case of Commissioner of Customs Vs. Indian Oil Corporation [2012(282) E.L.T 368 (Del.)] came to the conclusion that the entire case of claim for refund arose as per the first situation envisaged in para-104 of the judgment of the Supreme Court in the case of Mafatlal Industries Ltd. Vs. Union of India reported in 1997 (89) ELT 247 (S.C.) as it would be an unjust enr....
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....le under law. The refund was sought in respect of the additional value insisted upon by the department being the value of technical know how and royalty. It was added to the excise duty payable. When the assessee authority held that the customs duty paid by the assessee was proper and no additional duty need be paid, they were under an obligation to refund this additional amount which was collected, which had no basis. In such circumstances, Section 27 is not attracted. That is the view taken by the appellate authorities relying on the judgment of the Tribunal earlier. Therefore, the impugned order is legal and valid and does not suffer from any legal infirmity which calls for interference, No substantial question of law arises for consideration. Accordingly, appeal is dismissed." 7. In view of the foregoing reasons, we answer the substantial Questions of law A & B in favour of the Assessee and against the Revenue and the appeal is dismissed being devoid of any merits. This Court had passed the following order on 26th April, 2023 while admitting the Appeal:- "5. Learned advocate for the applicant - Appellant prays for grant of interim relief. In the facts and circumstan....