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2021 (7) TMI 1030 - HC - CustomsRefund of excess amount of tax - import of RBD Palm Oil - enhancement of rate of customs duty vide N/N. 29/2018-Cus., dated 1-3-2018 - validity of the notification - date on which notification came into effect, and the effect of notification on impugned bills of entry - HELD THAT - The Notification No. 29/2018-Customs, dated 1-3-2018 came into effect from the date of its publication in the official website of the respondent as per the Office Memorandum - there is no dispute that the Notification was uploaded in the official website on 6-3-2018. Therefore, the rate of duty, as was in existence prior to the said publication of the Notification No. 29/2018-Customs, dated 1-3-2018 in Notification No. 50/2017-Customs, dated 30-6-2017, was applicable for assessment of the Bill of Entry No. 5409602, dated 1-3-2018. The respondents will have to pass a reassessment order in terms of Section 149 of the Customs Act, 1962 and thereafter the petitioner has to file a refund claim in terms of Section 27 of the Customs Act, 1962 - the petitioner is required to satisfy with the requirements of unjust enrichment. The petitioner is therefore also directed to file a refund application before the respondents, within a period of one month from the date of receipt of a copy of this order. This Writ Petition stands partly allowed.
Issues Involved:
1. Refund of excess tax paid. 2. Validity of customs duty notification. 3. Interpretation of Section 25 of the Customs Act, 1962. 4. Compliance with procedural requirements for refund claims. 5. Enforcement of previous court orders. Detailed Analysis: 1. Refund of Excess Tax Paid: The petitioner sought a writ of mandamus to direct the respondent to refund the excess tax amounting to ?73,84,192/- paid against Bill of Entry No. 5409602, dated 1-3-2018. The petitioner had imported 6,000 metric tons of RBD Palm Oil and cleared 1000 metric tons vide Bill of Entry No. 5409602, dated 1-3-2018. The customs duty rate was increased from 40% to 54% by Notification No. 29/2018-Cus., dated 1-3-2018, but this notification was published only on 6-3-2018. 2. Validity of Customs Duty Notification: The petitioner challenged the enhancement of customs duty from 40% to 54% before the Andhra Pradesh High Court and the Madras High Court. The Andhra Pradesh High Court, in its order dated 28-9-2019, declared Section 25(4) of the Customs Act, 1962 as arbitrary and contrary to Section 25(1) and (2A) of the Customs Act, 1962. It held that the notification was not valid until its publication on 6-3-2018, and the respondents were liable to refund the excess amount collected. 3. Interpretation of Section 25 of the Customs Act, 1962: The Andhra Pradesh High Court interpreted Section 25(1) and 25(4) of the Customs Act, 1962, concluding that the amendment to Section 25(4) creating absurdity and confusion was illegal. The notification was considered effective only from the date of its publication, i.e., 6-3-2018, and not from the date of its issue. 4. Compliance with Procedural Requirements for Refund Claims: The court emphasized the need for the petitioner to comply with procedural requirements for refund claims. The respondents were directed to pass a reassessment order under Section 149 of the Customs Act, 1962, and the petitioner was instructed to file a refund claim under Section 27 of the Customs Act, 1962. The petitioner needed to satisfy the requirements of unjust enrichment as per the decision in Mafatlal Industries v. Union of India. 5. Enforcement of Previous Court Orders: The petitioner referred to a previous order in W.P. No. 21207 of 2018, where the court had directed the respondents to refund the excess duty paid within two months. The court in the present case reiterated that the petitioner could approach the Hon’ble Division Bench to enforce the previous order and seek punishment for non-compliance. The respondents were instructed to refund the amount within a reasonable time if they could not get an extension for refunding the amount. Conclusion: The writ petition was partly allowed with the observations that the petitioner must file a refund application within one month, and the respondents must pass a reassessment order and process the refund claim. The respondents were also instructed to seek an extension of time from the Hon’ble Division Bench if necessary. No costs were awarded, and the connected Miscellaneous Petition was closed.
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