9911796707
TMI Blog2016 (6) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for Rs. 1,45,39,200/- on 04.05.2013 on the ground that though they have paid export duty vide TR-6 Challan dt.05.12.2007 against the Shipping Bill No.6282271, dt.17.11.2011 for goods meant for export but the same could not be exported. The said refund claim was rejected by the adjudicating authority on the ground of limitation. Aggrieved by the said order, they have preferred an appeal before the learned Commissioner (Appeals), who in turn, had also rejected their appeal. Hence, the present appeal. 3. The learned Advocate submits that even though on payment of export duty, the Let Export Order (LEO) was received on 09.12.2011, but since they were not able to get any buyer, the shipment was delayed and they requested for cancellation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.05.2013. Therefore, irrespective of the reasons, the said claim is barred by limitation prescribed under Section 27 of Customs Act, 1962. It is his contention that in view of the ratio laid down by the Constitutional Bench of Hon'ble Supreme Court in the case of Mafatlal Industries Ltd Vs U.O.I.- 1997 (89) ELT 247 (S.C.), the refunds arising out of the erroneous payment of export duty under the Customs Act,1962 ought to be governed by the provisions prescribed under the said Act. It is his contention that the Tribunal in the case of Sesa Goa Ltd Vs CC (Port), Kolkata - 2016 (332) ELT 361 (Tri-Kolkata) and also the Calcutta High Court in the case of Vedanta Ltd Vs CC (Port) - 2016 (332) ELT 284 (Cal.), in similar circumstances, reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the date of purchase of goods by such person. (1A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person. (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely : (a) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 25, the limitation of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest, if any, paid on such duty] on imports made by an individual for his personal use; (c) the [duty and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the [duty and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of [duty and interest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escinded by the Central Government at any time by notification in the Official Gazette.]" 6. A plain reading of the aforesaid provision reveals that the period of limitation starts from the date of payment of duty. Exceptions are mentioned in the said provision viz. duty paid under protest, duty paid during provisional assessment, etc. In the present case, the duty has been finally assessed and paid by the Appellant following self assessment procedure on 05.12.2011 and Let Export Order was issued thereafter. Therefore, in view of the principle laid down by the Hon'ble Calcutta High Court in the case of Vedanta Ltd (supra), the period of limitation would start from the date of payment of duty i.e. 05.12.2011. Consequently, in our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
