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TMI Blog2009 (8) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ong refund cannot be accepted. Notice issued on clearance agent, not good enough notice for the purpose of taking it as a notice on importer. - 27 of 2005 - - - Dated:- 28-8-2009 - D.V. Shylendra Kumar and Aravind Kumar, JJ. Smt. Veena Jadhav, Advocate, for the Appellant. Shri Rajesh Chander Kumar, for the Respondent. [Judgment per: D.V. Shylendra Kumar, J.]. - Appeal by the Commissioner of Customs against the order passed by the CESTAT wherein the Tribunal took the view that an effort on the part of the Department to recover any excess refund to the tune of Rs. 2,30,687/- as amount wrongly refunded in terms of the earlier order passed on refund claim and refunded in terms of cheque dated 15-9-1999 for a sum of Rs. 2,30,687 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der directing the recovery of the wrongly refunded amount as per the order dated 31-10-2000 as per Annexure-'D'. 6. Aggrieved importer, appealed to the Commissioner of Customs (Appeals) and raised the plea of limitation i.e., the notice under Section 28 said to have been received by the importer on 3-4-2000 to have been time-barred being beyond the period of six months and therefore the Revenue was not entitled to reclaim the wrongly refunded amount assuming that it was so and as being barred by limitation. Incidentally, the assessee/importer had also urged that in fact the refund had not resulted in any unjust enrichment. However, on the part of the Revenue the attempt to reclaim the refund amount was on the premise that the refund of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the owner/importer." 10. It was urged that a notice on a person who was not specifically authorised for the purposes of the proceedings is not a notice on the importer and the mere fact that the importer had on an earlier occasion availed the services of the Customs Agent and used him as his agent does not mean that the Customs Agent had remained an agent for all time. That with the issue of refund order and cheque they received by the agent and passed on to the customer, the authorisation came to an end and therefore service of notice issued under Section 28 of the Act on such a person as on 14-3-2000 was not proper service on the importer in the eye of law. 11. This contention of the appellant-assessee before the Tribunal found acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me the appellant came up with the contention that the recovery proceedings notice under Section 28 was barred by limitation. Submission is that even though a ground of limitation was raised it was not on such premise before the First Appellate Authority, the notice on the agent was not good enough notice on the importer. Therefore it was barred by limitation. 14. With reference to the judgment relied upon by the Tribunal learned standing counsel would submit that the judgment is not applicable to the present case particularly as the judgment was rendered in the context of recovery of short levy of duty and not refund as in the present case more so when the cheque pursuant to the refund order was received by the agent himself and the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s will definitely amount to the agent being authorised to act on behalf of the importer for all purposes in connection with the refund application in the order and further proceedings and the authorisation can be necessarily be implied even in respect of further proceedings under Section 28 of the Act etc. 18. We have examined the authorisation letter. It is for the purpose of making the refund application. The authorisation does not in any way indicate that it is a general authorisation which can go on to a large extent than what has been indicated therein. In this regard if this authorisation is one to be construed as an authorisation which is valid on the day when the notice was served on the agent perhaps as good a service on the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue. 21. However, we have to examine another submission made by the learned standing Counsel for the appellant namely that the assessee at the time of receiving the refund amount had given an undertaking to the effect that in the event it is found that the duty incidence had already been passed on to the Customers before making refund claim or receiving refund amount on the principle or on the doctrine of unjust enrichment of the amount for being credited to the Consumer Welfare Fund and in the light of such undertaking, if it is in fact found that the assessee had already passed on the incidence of levy of Customs duty to the customer the amount can be recovered for being credited to the fund. Mr. Rajesh Chander Kumar, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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