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TMI Blog2017 (12) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... s authorities thereupon issued a LET export order on 09.12.2011. Thus, the Customs authorities remitted the petitioner to carry out the export of goods in terms of the shipping bill dated 17.11.2011. It is the case of the petitioner that the export actually could not take place for the reasons which we are not directly concerned with. On 17.01.2013, the petitioner wrote to the Assistant Commissioner of Customs, Mundra and conveyed as under: "Dear Sir, Subject:Refer our letter dated 23.04.2012 and Cancellation of Shipping Bill No. 6282731 We have filed shipping bill no 6282731 Dated. 17.11.2011 for 40000 Mton valued @ USD 36.80 PMT and paid export duty @ 20% which was in applicable in November 2011. We were unable to get buyers for the same since the shipment was delayed. Now we intend to export these goods valued @ USD 66.24 and want to pay export duty @ 30% which is currently applicable. Since the cargo has been carted on above shipping bill, we request you to cancel the above shipping and allow us to file a fresh shipping bill for payment of export duty and export thereafter. Since the vessel ETA is 23.01.2013, we request you to do the needful at the earliest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be without any remedy. He pointed out that the petitioner's right or the cause of action to claim refund of the amount deposited with the Customs authorities arose only after one year of the payment. Prior to such date, the petitioner could not have claimed the amount back. If the literal interpretation of section 27(1) of the Act is adopted, the petitioner would be left with no remedy and would be burdened with payment of customs duty twice for single instance of export of the same goods. With respect to filing of the writ petition instead of Tax Appeal, counsel submitted that in view of peculiar facts, the writ petition should be entertained. Even if against the order of the Tribunal, Tax Appeal lies, the writ jurisdiction of the High Court under Article 226 of the Constitution is not totally shut out. Counsel relied on certain decisions, to which, we would refer to at an appropriate stage. 9. On the other hand, learned advocate Shri Lodha for the department strongly opposed the petition contending that the Customs authorities and the Tribunal have correctly applied the provisions of section 27 of the Customs Act. Application for refund of the customs duty was filed af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the rate of duty and tariff valuation applicable to any export goods shall be the rate and valuation in force in the case of goods entered for export under section 50, on the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51 and in case of any other goods, on the date of payment of duty. 13. Section 26 of the Customs Act pertains to refund of export duty in certain cases and reads as under: 26. Refund of export duty in certain cases. Where on the exportation of any goods any duty has been paid, such duty shall be refunded to the person by whom or on whose behalf it was paid, if (a) the goods are returned to such person otherwise than by way of resale; (b) the goods are reimported within one year from the date of exportation; and (c) an application for refund of such duty is made before the expiry of six months from the date on which the proper officer makes an order for the clearance of the goods. 14. Section 27 of the Customs Act pertains to claim of refund of duty. The relevant portion of which reads as under: (1) Any person claiming refund of any duty and interest, if any (a) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our purpose, reads as under: 51(1) Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. 16. From the statutory provisions noted, it would emerge that the export of goods would take place upon the same being taken out of India to a place outside India. The definition of 'exporter' under section 2(20) of the Customs Act would make it clear that there is a clear distinction between the stage when the goods meant for export are entered for export and they are actually exported. During this period, any owner, beneficial owner or any person holding himself out to be so, would be considered as an exporter. Subsection (1) of section 12 authorizes the Customs authorities to levy customs duty at the prescribed rates for goods imported into or exported from India. Thus, the incident of levying of customs duty is on export of goods. It is however true that in terms of subsection (1) of section 16 of the Customs Act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities perhaps would right in contending that the application for refund was beyond the period of limitation prescribed. However, such interpretation would lead to anomalous and unintended consequences and must be avoided. In the present case, the petitioner's right to seek refund or in other words the cause for filing application for refund arose only when the export actually failed. Till then, he petitioner could not have applied for return of amount already deposited. If in the meantime, as in the present case, more than a year is passed, the literal interpretation of application of subsection (1) of section 27 would amount to a situation where the cause of action for filing refund application even though had not arisen within one year from the date of deposit of the duty, the applicant for refund would be told that his refund application is barred by limitation. 19. The issue can be looked from slightly different angle. If the petitioner's export had failed within few days of filing of shipping bill and the LET order passed by the Customs authorities, even counsel for the department agreed that the refund application if filed promptly would have been granted. The quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited by the counsel for the petitioner. In case of M/s. United News of India v. Union of India reported in ILR (2004) I DELHI 65, the Division Bench of Delhi High Court considered a case where the importer had paid duty on anticipation of delivery of 69 bales of cotton. However, only 51 bales were delivered, upon which, the importer applied for refund of access duty. Such claim was rejected on the ground that the same was filed after expiry of 6 months. The Court held that the cause of action for demanding refund of customs duty arose only after importation 51 bales into India and the claim was therefore not barred by limitation. 23. In case of Board of Trustees of the Port of Mormugao v. Union of India, passed by the Bombay High Court in Writ Petition No.512 of 1984, the Division Bench of Bombay High Court held that the refund arising out of short landing of goods lies against consignment of goods were shortlanded and not against the replacement of consignment and the limitation clause would not apply in such cases were duty is paid on shortage i.e. in respect of goods which were not imported. 24. In case of Insurance Company of the Ussr (Ingosstrakh) Ltd. v. U.O.I. reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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