2014 (11) TMI 737 - AT - Customs

Denial of refund claim - finalization of provisional assessment - The adjudicating authority rejected the refund claim on the ground that the finalization of amount was done on 5.1.2007 and the appellant filed refund claim on 10.9.2007. - period of limitation - Commissioner (Appeals) mainly following the Public Notice No.45/2004 dt. 10.3.2004 observed that the Bills of Entry were audited on 5.4.2007 and the importer had time upto 4.10.2007 for filing the refund claim and allowed the refund claim - Held that - In the case of Indian Oil Corporation Ltd. (2012 (1) TMI 31 - DELHI HIGH COURT) the Hon ble Delhi High Court observed that Explanation-II of Section 27 of the Act deals with the 3rd category of situations. Such situation may occur after the passing of the final assessment on account of rectification under Section 154 of the Act or because of any other reasons as a result of which the final order suffers an amendment or a change and some amount becomes refundable. It is seen from the file note as reproduced in the impugned order that after passing of final assessment the Bill of Entries were audited on 5.4.2007 and it was forwarded to refund section. Then it is apparent after final assessment and group audit that the Respondent is eligible for refund of excess amount paid by them. In this context it is noted that by Public Notice No.45/2004 the procedure was laid down for filing refund claim arising out of finalization of provisional assessment - After going through Section 27 of the Customs Act 1962 and on perusal of File Note and Public Notice No.45/2004 it is clear that after finalisation of assessment same will be audited and thereafter the assessing group will issue relevant orders of excess duty refundable if any. - Decided against Revenue.

Summary

Issues:
Appeal against order for refund of duty amount, Limitation period for filing refund claim under Section 27 of the Customs Act, 1962, Interpretation of Explanation II of Section 27(1) for computation of limitation period.

Analysis:
1. The Revenue filed an appeal against the Commissioner (Appeals) order for refund of duty amount of Rs. 10,84,535. The dispute arose when the refund claim was rejected due to the timing of the claim filed after finalization of provisional assessment.

2. The key contention was regarding the limitation period for filing a refund claim under Section 27 of the Customs Act, 1962. The Revenue argued that the limitation should be calculated from the date of adjustment of duty after final assessment, which they claimed was on 8.1.2007. They relied on legal precedents to support their argument.

3. The respondent, on the other hand, relied on the Commissioner (Appeals) decision and Public Notice No.45/2004. They argued that the excess duty amount assessed during finalization would be automatically refunded without the need for a separate refund application, citing a recent Delhi High Court decision.

4. The Tribunal analyzed the provisions of Section 27 of the Customs Act, 1962, specifically focusing on Explanation II which deals with the computation of the limitation period for filing refund claims. The Tribunal agreed with the Commissioner (Appeals) that the limitation period should start from 5.4.2007 based on the file note indicating the audit date of Bills of Entry.

5. The Tribunal referenced legal interpretations from previous cases to support its decision, emphasizing that after final assessment and group audit, the respondent was eligible for the refund of the excess duty paid. The Tribunal also highlighted the procedural guidelines outlined in Public Notice No.45/2004 for filing refund claims after finalization of provisional assessment.

6. After a thorough examination of the Customs Act, relevant file notes, and procedural guidelines, the Tribunal concluded that the Commissioner (Appeals) decision was appropriate. The appeal filed by the Revenue was rejected, affirming the refund order in favor of the respondent.