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TMI Blog2014 (7) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... red to file any refund claim under Section 27 of the Customs Act, 1962. Accordingly, refund claim cannot be held to be time barred as the same pertained to provisional assessments before 12.07.2006 - Following decision of Commissioner of Customs Vs Indian Oil Corporation [2012 (1) TMI 31 - DELHI HIGH COURT] - Decided in favour of assessee. - Appeal No.C/188/2012-SM - Order No. A/11184/2014 - Dated:- 4-7-2014 - MR. H.K. THAKUR, J. For the Appellant : Shri W. Christian, Advocate For the Respondent : Shri Jitendra Nair, A.R. JUDGEMENT Per: H.K. Thakur; 1. This appeal has been filed by the appellant against OIA No. COMMR(A)/250/VDR-I/2012, dt.30.04.2012 passed by the Commissioner (Appeals) Vadodara. First appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of six months from 22.02.2008 (the date on which order for adjustment of duty was made by the Deputy Commissioner) as per Explanation II to Section 27(1) of the Customs Act, 1962. Ld.A.R. thus strongly defended the findings of the order dt.30.04.2012 passed by the first appellate authority. 3. Heard both sides and perused the case records. The only issue required to be decided in the present proceedings is whether appellant was required to file any refund claim application under Section 27(1) of the Customs Act, 1962 when on finalization of provisional assessment under Section 18 it was found that appellant has paid excess Customs duty at the time of provisional assessment as compared to duty which was finally assessed. Appellant has pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they could not file an application for refund, was rejected by the Assistant Commissioner (Refund). The first appeal filed by the respondent-assessee was dismissed. The first appellate authority relied upon decision of the Bombay High Court in Bussa Overseas and Properties Pvt. Ltd. v. Union of India - 2003 (158) E.L.T. 135 (Bom.). 6. The respondent-assessee preferred an appeal before the Tribunal and the said appeal has been allowed by the impugned order dated 16-3-2011 [2011 (269) E.L.T. 405 (Tri.-Del.).]. The tribunal has preferred to follow the view taken by the High Court of Gujarat in Commissioner of Customs v. Hindalco Industries Ltd - 2008 (231) E.L.T. 36 (Guj.). In the impugned order, the Tribunal has held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund. Explanation II will have no application in cases where admittedly after final adjustment, refund is due to the Assessee. This is explained with the following illustration: Duty paid provisionally ₹ 100 Duty finally assessed ₹ 60 Duty to be refunded ₹ 40 In this case Explanation II will have no application since no claim for refund is made and ₹ 40 is to be refunded since the same is admittedly due. Duty paid provisionally ₹ 100 Duty finally assessed ₹ 0 According to As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act or because of any other reason, as a result of which the final order suffers an amendment or a change and some-amount becomes refundable. As far as Section 18 of the Act is concerned, when an amount becomes refundable after a final order is passed, the same has to be refunded immediately and for this purpose the assessee is not required to move an application under Section 27 and accordingly sub-section (2) to Section 27 would not apply. It is in this situation that the legislature has intervened and has now inserted sub-sections (3), (4) and (5) to Section 18 w.e.f. 13-7-2006. These insertions obviously are not applicable to the case in hand as they do not have retrospective effect. It was so held in TVS Suzuki Ltd. (supra) when simi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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