2014 (12) TMI 1047 - AT - Customs

Date of communication of order - Refund claim - Whether the date of passing of the order completing the provisional assessment shall be considered or the date of communication of order shall be considered to count limitation for filing refund application - Held that - facts are not in dispute exhibiting that the provisional assessments in the case of the appellant were completed prior to the communication of the final assessment order. The date on which a public order is served on the person to whom that is meant, such date of service is counted for remedial measure if the person on whom the order served is aggrieved. The date of communication is deceive for different purposes of law in respect of the person to whom the order is meant and on whom that is served. Whether the refund arising out of completion of provisional assessment shall undergo the process of Section 27 when the refunds related to the period prior to 13-7-2006 - Held that - when refund arises upon completion of provisional assessments, that flows suo motu under law prior to 13-7-2006 to the assessee without an application being made. The refund so arsing does not under go the process of Section 27 of the Customs Act, 1962 but is covered by the Section 18 of the said Act. However Section 18 has undergone amendment with effect from 13-7-2006 with necessary implication that even refund arising on completion of provisional assessment shall be governed by Section 27 of the said Act. By that amendment, bar of limitation as well as unjust enrichment are enacted to the law. Therefore before 31-7-2006, the refund arising upon completion of the provisional assessments is not intended by law to undergo the test of limitation as well as unjust enrichment in terms of law laid down by the Hon ble High Court of Delhi in the case of the present appellant reported in 2012 (1) TMI 31 - DELHI HIGH COURT . Following the ratio laid down therein, appeal of the appellant is allowed and the refund is payable to the appellant. - Refund allowed.

Summary

Issues:
1. Date of passing order vs. date of communication for limitation of refund application.
2. Process for refund arising from completion of provisional assessment pre and post 13-7-2006.

Issue 1: Date of passing order vs. date of communication for limitation of refund application

The first issue in this appeal pertains to determining whether the date of passing the order completing provisional assessment or the date of communication of the order should be considered for counting the limitation period for filing a refund application. The appellant argued that the date of communication of the order should be the decisive factor. The Tribunal noted that when a public order is served, the date of service is crucial for remedial measures if the recipient is aggrieved. The date of communication serves different legal purposes for the recipient and the person on whom the order is served.

Issue 2: Process for refund arising from completion of provisional assessment pre and post 13-7-2006

The second issue revolves around the process for refunds arising from the completion of provisional assessments, specifically whether such refunds are subject to Section 27 of the Customs Act, 1962, when related to periods before 13-7-2006. The Tribunal observed that refunds resulting from provisional assessments before the specified date were automatically granted to the assessee without requiring an application. These refunds were governed by Section 18 of the Customs Act. However, an amendment effective from 13-7-2006 mandated that even refunds from provisional assessments would be regulated by Section 27, which introduced limitations and considerations like unjust enrichment. The Tribunal referred to a previous judgment by the Hon'ble High Court of Delhi, which clarified the legal position. Consequently, the appellant's appeal was allowed, and the refund was deemed payable.

In conclusion, the Tribunal addressed the two issues raised in the appeal regarding the limitation period for filing a refund application based on the date of order communication and the process for refunds from provisional assessments pre and post 13-7-2006. The judgment clarified the legal framework applicable to such scenarios and provided a favorable outcome for the appellant based on established legal principles and precedents.