TaxTMI 
TaxTMI 
2026 (9) TMI 833
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....ssed provisionally for want of original documents and test report. On production of the relevant documents by the Respondent, the Assistant Commissioner of Customs, Nagapattinam, finalised the Bill of Entry by passing the Order-in-Original No. 35/2014, dated 30.04.2014 ordering a refund of Rs.75,50,539/- being the excess amount of duty paid by the Respondent at the time of provisional assessment. Accordingly, the Respondent filed a refund claim dated 13.05.2015 received by the Department on 15.05.2015 claiming refund of said amount as per Section 27 of the Customs Act, 1962. The claim was returned under a deficiency memo and was resubmitted vide letter dated 04.06.2015, received by the department on 09.06.2015. 3. The Department, being of the view that the refund claim has been filed on 09.06.2015 whereas the Order in Original No.35/2014 finalising the provisional assessement was issued on 30.04.2014 and hence the refund claim was filed beyond the limitation period of one year; issued a Show Cause Notice dated 06.07.2015 to the Respondent. The Respondent, in its reply dated 16.07.2015, inter-alia contended that the Order-in-Original No.34/2014 dated 30.04.2014 issued for finaliz....
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....4. Credence was given to the Respondent's claim as the Respondent was a government undertaking. The Appellate Authority has therefore set aside the order and directed the refund claim to be considered. Aggrieved, the Revenue is in appeal before this Tribunal. 5. Ms. Anandalakshmi Ganeshram, Ld. Authorized Representative appearing for the Appellant department contended that in the instant case the order of finalization of provisional assessment by the Original Authority vide the OIO No.35/2014 dated 30.04.2014 led to determination of the fact that excess duty has been paid by the Respondent on the goods at the time of provisional assessment. Section 27 (1B)(c) has specified that where any duty is paid provisionally under Section 18 the period of limitation of 1 year shall be computed from the date of adjustment of duty after the final assessment thereof. It was argued that the date of adjustment is the date of order since by the original order itself the Proper Officer has appropriated the duty due. It was therefore argued that the period of limitation to file refund started to run with effect from the said date of adjustment, viz 30.04.2014. It was therefore contended that t....
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.... be 10.06.2014, and not from the date the order was signed. 9. It is true that clause (c) does not, in as many terms, employ the word "communicated". The submission, at first blush, on a bare reading of the text, is of some force, but it cannot be accepted once the provision is examined in the light of the settled principle governing limitation running against a party seeking a remedy. 10. In Collector of Central Excise, Madras v. M.M. Rubber & Co., 1991(55)ELT 289 (SC), the Hon'ble Supreme Court drew a clear distinction between a limitation prescribed for a statutory authority to exercise a power of its own motion, where the period runs from the date the order is made because the authority cannot plead ignorance of its own act, and a limitation prescribed for a person aggrieved to invoke a remedy against an order, where actual or constructive knowledge of the order is an essential element without which the order cannot be said to have become binding on him and the limitation cannot be said to have commenced. A refund claim under Section 27 is unmistakably of the latter kind. The Respondent is not the author of the order finalising the provisional assessment but the party....
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....2024) 20 Centax 516 (Guj.), the High Court answered it against Revenue, holding that communication of the order of finalisation to the assessee "is a condition sine qua non to file the refund claim within one year as per Section 27(1B)(c) from the date of finalization", and that mere uploading of the assessment order on the Department's portal, without more, does not satisfy that requirement. The appeal of Revenue was dismissed. Thus, the issue whether this Tribunal was right in reading "date of service" into a clause that speaks only of the "date of adjustment of duty", is therefore no more res-integra. 13. No decision of the Hon'ble jurisdictional High Court, or of this Tribunal, taking a contrary view of clause (c) has been placed before us, nor has any been found. In the absence of one, we see no warrant for departing from the ratio of GAIL (India) Ltd. (Guj.), which materially is also in consonance with the general principle laid down in M.M. Rubber & Co, that has already been noticed by us above. We accordingly, have no hesitation in holding that the limitation of one year under Section 27(1B)(c), for a refund of duty paid provisionally under Section 18, runs from ....
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.... be strictly complied with. What was said there of an order sought to be enforced against an assessee applies with equal, if not greater, force where, as in the instant case, it is the assessee who stands denied a remedy for want of proof that an order was ever brought to its notice. Thus, the burden to prove that an order that adversely affects an assessee has been served on him as per the prescribed method, is always on the Revenue. 16. It makes no difference for this purpose that Order-in-Original No.35/2014 was one finalising a provisional assessment rather than an order of adjudication in the strict sense. Section 153 speaks of an order or decision without qualification, and an order of provisional assessment is itself expressly brought within the definition of "assessment" in Section 2(2) of the Act. As this Tribunal observed in Commissioner of Customs (Export), Mumbai v. Goodwill Sales Pvt. Ltd., 2016 (343) E.L.T. 1193 (Tri.-Mumbai), assessment and adjudication, though conceptually distinct, are alike orders or decisions for the purposes of the Act. Nothing in Section 153 confines its protection to orders of adjudication to the exclusion of orders of assessment. 17. Tu....