2025 (9) TMI 962

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.... and the shipping bill was not sent to Haldia for further pre-shipment formalities. Accordingly, the customs house agent of the appellant vide letter dated 11.12.2008 addressed to Assistant Commissioner, Export, inter alia, requested for cancelation of the subject Shipping Bill. 2.2 Since no shipment took place at all against the Shipping Bill the appellant submitted a claim application with the department on 26.06.2009 for refund of the duty and cess amounts. 2.3 The Adjudicating Authority vide Order-in-Original No.45/2010 dated 24.03.2010 rejected the refund claim on the purported ground that the claim was filed beyond six months and the same is time barred as per Section 27(1)(b) of the Customs Act, 1962. The Appellant appeal before the Ld. Commissioner of Customs (Appeals) got rejected on similar grounds. 2.4 Being aggrieved, the appellant preferred an appeal before the Tribunal. The Tribunal vide FO/75675/2017 dated 19.04.2017 remanded the matter before the adjudicating authority to decide afresh considering the facts and circumstances of the case. 2.5 The matter was re-adjudicated by the Assistant Commissioner (Export refund section). Vide O-I-O No.KOL/CUS/AC/3376....

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....uty can be levied only on "Exported Goods" and not on the "Goods meant for export". In the instant case no goods were presented for exports, hence the deposit made by the Appellant is not the Customs Duty for exported goods. 3.1 In support of his contention, he relies on the following decisions: (i) Vedanta ltd. v/s Commissioner of Customs (Port), [2017 (345) E.L.T.577 (S.C.) ; (ii) United News of India v/s Union of India [2004 (1) TMI 90 - High Court of Delhi] ; (iii) ICI. India Ltd. v/s Collector of Customs [1991 (8) TMI 105 - Calcutta High Court] ; (iv) DHL Express India Pvt Ltd v/s the Commissioner of Service Tax [2021 (4) TMI 598 - Karnataka High Court] ; (v) Ranbaxy Laboratories Ltd v/s Union of India & Ors- [2011 (273) E.L.T. 3 (Supreme Court)] ; 3.2 The ld.Counsel for the appellant has contended that the refund claim is sanctioned to them along with interest after three months from the date of filing of refund claim at the rate of 12% per annum. 4. The ld.A.R. for the Revenue supported the impugned order. 5. Heard both the parties and considered the submissions. 6. I find, it is the fact on record that in this case....

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.... expiry of the time limit of six months prescribed in Section 27(4) of the Customs Act, 1962 (hereinafter referred to as "the Act"), and, the claim was rejected as being time barred." In this case, the Hon'ble Delhi High Court has observed as under : "22. In the opinion of the Court, Section 27 of the Act will not apply in this case as the amount retained by the Union of India was not an amount by way of customs duty assessed in accordance with law. Moreover, presuming that it is "duty" even then the refund application is within the period stipulated, which we have discussed above. It is in these circumstances, that we direct the Union of India to make the payment to the petitioner with interest at the rate of 12% p.a. till the amount is paid. " 9. Further, in the case of ICI India Limited Vs. Collector of Customs reported in 1991 (8) TMI 105-High Court at Calcutta [1992 (60) ELT 529 (Cal.)], wherein the facts of the case are as under : "2. These facts are not in dispute. The goods that the petitioner wanted to import did not arrive at Calcutta Port. As such, there was no question of payment of any customs duty. The only trouble of the petitioner was that he....

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.... In case of any other import, provisions of clause (b) of sub-section (1) of Section 27 will apply. But in this case, no import has taken place at all. In a case, where money was paid in advance on mistaken assumption, but no import actually took place, the Customs Authority cannot refuse refund of the money on the ground of limitation under Section 27 of the Act." 10. Further, in the case of DHL Express India Pvt. Limited Vs. The Commissioner of Service Tax, Bengaluru Sevice Tax I reported in 2021 (4) TMI 598-Karnataka High Court [2021 (377) ELT 594 (Kar.)], wherein the Hon'ble High Court has held as under : "17. In the light of the law laid down by the Hon'ble Supreme Court and the other High Courts keeping in view the peculiar facts and circumstances of the case, it is crystal clear that when the customs duty is paid in excess, the department is liable to refund the same and the limitation provided under Section 27 of the said Act of 1962 will not be applicable. Therefore, the Tribunal has erred in law and fact, solely relying on Section 27 of the said Act of 1962 while dismissing the application of the appellant-Company." 11. It is an admitted facts that no expor....