TaxTMI 
TaxTMI 
2004 (3) TMI 246
X X X X Extracts X X X X
X X X X Extracts X X X X
....orn Agrotech Pvt. Ltd., had exported Gherkins and paid Cess under the Agricultural and Processed Food Products Export Cess Act, 1985. In both the cases, the exporter subsequently filed refund claims on the ground that the Ministry of Commerce had issued Notification No. S.O. 51(E), dated 17-1-2001 exempting the Cess on export of all scheduled products by 100% Export-Oriented Units. Show Cause Notices were issued to both the respondents proposing to reject the refund claim and to credit the subject amount of Cess to the "Fund" under Section 27(2) of the Customs Act, 1962. The refund claims were rejected by the adjudicating authority under Sections 26 and 27 of the Customs Act, 1962. The appeals filed by the respondents before the Commissione....
X X X X Extracts X X X X
X X X X Extracts X X X X
....water Cess from sugar factories was held to be illegal under that Act. He pleaded that the Supreme Court in the case of M/s. Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) vide Para 99(i), held as under : "(i) by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by mis-interpreting or mis-applying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactment before the authorities specified thereunder and within the period of limitation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the goal and the ideals set out in the Preamble to the Constitution and in Articles 38 and 39 thereof. The concept of economic justice demands that in the case of indirect taxes Central Excises duties and Customs duties, the tax collected without the authority of law shall not be refunded to the petitioner-plaintiff unless he alleges and establishes that he has not passed on the burden of duty to a third party and that he has himself borne the burden of the said duty". 6. He pleaded that tax collected without the authority of law shall be refunded only after proof that the duty burden was not passed on. Therefore, even if the gherkins are exempted from payment of Cess (duty of Customs), yet, the refund cannot be granted without delving....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) as they apply in relation to the levy and collection of the duties of Customs under that Act or those rules and regulations". Thus, it is clear that the Cess is levied and collected as a Customs duty and the provisions of Customs Act relating to refunds are applicable if it has been wrongly assessed or collected. Therefore, the findings of the Commissioner (Appeals) that Section 27 of the Customs Act is not applicable is not correct. The refund of the cess collected has to be refunded under the provisions of Section 27 of the Customs Act. The Supreme Court in case of Mafatlal Industries v. Union of India (supra) have held that "by mis-interpreting or mis-applying the provisions of the Central Excises and Salt Act, 1944 read with Central E....