2017 (11) TMI 167 - AT - Customs

Implementation of order - Refund claim - whether the second refund claim filed by the appellant on 03/09/2010 (formal) is hit by limitation or otherwise? - Held that - the first refund claim was filed on 18/07/2007 which went into litigation and had to be decided by the first appellate authority on 23/12/2009 in favor of the appellant. As a consequence of such an order, Revenue authorities should have suo motu granted the refund if they have not filed an appeal against such order - the Board s circular No.275/37/2K-CX. 8A dt. 02/01/2002 as amended by Board s circular No.96/1/2017-CX.I dt. 10/03/2017 would apply in this case. Division Bench of this Tribunal in the case of Lorenzo Bestonso Vs. CC(Imports), Nhava Seva 2014 (9) TMI 984 - CESTAT MUMBAI , on a similar situation has held that there being a consequential relief, it was incumbent upon the Revenue to refund the amount deposited during the investigation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Whether the second refund claim filed by the appellant is hit by limitation or not.

Analysis:
The appeal was directed against Order-in-Appeal No. 80-2011 dated 18/08/2011. The issue under consideration was whether the second refund claim filed by the appellant on 03/09/2010 was barred by limitation. Both the adjudicating authority and the first appellate authority had concluded that the formal refund claim filed on 03/09/2010 was indeed hit by limitation under the 4th proviso to Section 27 of the Customs Act, 1962. This was because the refund claim was filed subsequent to an Order-in-Appeal passed in favor of the appellant on 23/12/2009.

The appellant had filed the first refund claim on 18/07/2007, which had to be decided by the first appellate authority on 23/12/2009 in their favor. The Revenue authorities were expected to grant the refund suo motu if they had not appealed against such an order. It was confirmed that the Revenue did not file an appeal against the order dated 23/12/2009. The Tribunal referred to Board circulars and previous case law to support the appellant's claim. Citing a Division Bench decision in a similar case, the Tribunal emphasized that in cases of consequential relief, it was the Revenue's obligation to refund the amount deposited during the investigation.

Consequently, the Tribunal found that the impugned order was unsustainable and set it aside. The appeal was allowed in favor of the appellant. The Tribunal's decision was based on the application of relevant legal principles and precedents, ultimately leading to the setting aside of the previous order and allowing the appeal.