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2023 (7) TMI 594 - AT - CustomsRefund claim of late fee mistakenly paid - late fee waived off by public notice no.21/2020 dated 26/03/2020, later on withdrawn by public notice dated 10/06/2020 - time limitation - HELD THAT - The issue involved here is not refund of duty or an interest thereof but a simple return of the amount paid by the appellant under mistaken notion of law. This is governed by the general principles of restitution as in the case of refund of deposits, fines and penalties - It is found that the Revenue is taking a contradictory stand in as much as on the one hand, it claims that the refund of late fees is not governed by the provisions of Section 27 of the Customs Act 1962 and on the other, they find that the order of assessment being not challenged, they cannot be challenged by taking the route of refund. When the refund is not covered by Section 27, as revenue content, the question of challenging the assessment does not arise. Moreover, it is on record that the appellant has sought for reassessment of the bills of entry which were denied to the appellant saying that there was no provision in the system. Thus, the stand of the Department is not only contradictory to their own argument but also legally not acceptable. The issue is of a simple restitution. Even if one argues that the limitation provided in Section 27 is applicable to any type of refund. The Hon'ble Supreme Court's order on exclusion of the limitation period in view of the pandemic comes into picture. In view of the Supreme Court order, it had to be held that the refund is not hit by the limitation. As the issue involved is not of assessment of duty on classification, valuation of goods, the challenge of the assessment is not warranted. It is humbly opined that the ITC case does not cover such situations. Moreover, the appellant s application for reassessment has been rejected. The appeal succeeds on both counts i.e, limitation and merit - Appeal allowed.
Issues:
The issues involved in the judgment are late filing fee waiver due to COVID-19 pandemic, rejection of refund claim, application being time-barred, nature of late fee payment, waiver provisions not availed, challenge of assessment order, refund of amount paid under mistaken notion of law, and exclusion of limitation period due to pandemic. Late Filing Fee Waiver and Refund Claim: The appellant challenged the Order-in-Appeal passed by the Commissioner of Customs (Appeals) Guntur, regarding the late filing fee waiver during the COVID-19 pandemic. The appellant's CHA could not file the bills of entry in time, resulting in the payment of late fee. A refund claim was filed for the amount paid, which was rejected by the original Adjudicating Authority and the First Appellate Authority. The appellant argued that there was no delay in filing the refund claim as per the Hon'ble Supreme Court's order excluding the period from 15/03/2020 to 28/02/2022 in computing the limitation period. Revenue Bias and Legal Discipline: The appellant contended that the orders passed by the authorities showed a revenue bias and did not consider the submissions properly. The appellant highlighted that the department ignored judicial pronouncements related to limitation under the Central Excise Act and Customs Act for cases involving tax payment under a mistaken notion of law. The appellant emphasized that rejecting the refund claim for tax paid under a mistaken notion of law goes against the Constitution of India. Nature of Late Fee Payment and Refund Eligibility: The Authorized Representative for the revenue argued that the application for refund was time-barred and that the late fee paid does not fall under the category of customs duty or interest. It was mentioned that the appellant did not avail the waiver provisions for late fee and did not challenge the assessment order, which is a prerequisite for refund claims. Various case laws were relied upon to support this argument. Judicial Findings and Decision: After hearing both sides and examining the case records, the Tribunal found that the issue was not about refunding duty or interest but about returning the amount paid under a mistaken notion of law. The Tribunal noted the contradictory stand of the Revenue regarding the applicability of Section 27 of the Customs Act and the challenge to the assessment order. It was observed that the appellant sought reassessment, which was denied by the Department. The Tribunal concluded that the appeal succeeded on both limitation and merit grounds, ultimately allowing the appeal. Separate Judgment by Mr. P. ANJANI KUMAR, MEMBER (TECHNICAL): The judgment was pronounced in the open court on 13.07.2023 by Mr. P. ANJANI KUMAR, Member (Technical).
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