2003 (6) TMI 25 - HC - Customs

Refund the excess customs duty paid - Protest - manufacturing of industrial chemicals - HELD THAT - The import of machinery is not by any individual or by Government or educational or charitable institution and hence the limitation for making claim of refund of duty is before the expiry of six months from the date of payment of duty. Admittedly, the petitioner has not paid the duty under protest and the second proviso will not apply to the case of the petitioner. During the course of argument, Mr. P.S. Raman, learned Counsel for the petitioner, referred to the decision of Apex Court in Mafatlal Industries Limited v. Union of India 1996 (12) TMI 50 - SUPREME COURT . The Constitutional Bench of the Supreme Court, while dealing with the claim for refund under Section 11B of the Central Excise Act, Admittedly, in the present case, the petitioner has not made the payment of duty under protest and in that case, the period of limitation of six months will apply to the petitioner and the claim not being made within a period of six months from the date of payment has been rightly rejected by the respondent. There are no merits in the writ petition. The writ petition is dismissed. No costs.

Summary

Issues Involved:
The petitioner sought a writ of certiorarified mandamus to quash the respondent's proceedings and refund the excess customs duty paid.

Details of the Judgment:

Issue 1: Classification of Imported Goods
The petitioner imported HCL Synthesis Spares and claimed classification under Ch. 8417.90, but the respondent assessed them under Heading 6903.10, resulting in excess customs duty payment. The Collector of Customs (Appeals) set aside the respondent's order and classified the goods under sub-heading 8417.90, as claimed by the petitioner.

Issue 2: Refund Claim and Time-Barred Rejection
The petitioner filed a refund application claiming Rs. 3,48,613.50, which was rejected by the respondent as time-barred under Section 27(1) of the Customs Act, 1962. The respondent contended that the duty was paid without protest, making the limitation period of six months applicable.

Issue 3: Legal Provisions and Arguments
Section 27 of the Act governs refund claims, specifying the time limits and exceptions. The petitioner argued for immediate refund upon receipt of the appellate order, while the respondent maintained that the rejection of the claim as time-barred was valid.

Decision and Rationale:
The Court noted that the petitioner did not pay the duty under protest, making the six-month limitation period applicable. Referring to a Supreme Court decision, it emphasized that duty paid under protest exempts from the limitation period. Since the petitioner did not pay under protest, the claim was rightly rejected as time-barred. The writ petition was dismissed with no costs.

This judgment highlights the importance of paying duty under protest to exempt from the limitation period for refund claims, as per the provisions of Section 27 of the Customs Act, 1962.