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TMI Blog2018 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 which opens with the words “Save as otherwise provided in this section”. Thus, Explanation (B) including clause (ec) thereof is not subject to the proviso. Under Section 27 of the Customs Act, sub-section (1B) is subject to the second proviso to sub-section (1). The respondents’ apprehension that if the petitioner’s submission is accepted, there would be no period of limitation is not well founded. An application for refund must be made within a reasonable period of time. What is reasonable a period of time would depend on the facts of each case. This apprehension in any event cannot be the basis of denying a just claim on the ground of limitation. Refund allowed - petition allowed - decided in favor of petitioner. X X X X Extracts X X X X X X X X Extracts X X X X ..... exempt from payment of duty by a special order issued under sub-section (2) of Section 25, the limitation of one year shall be computed from the date of issue of such order; (b) where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction; (c) where any duty is paid provisionally under Section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof. "…..or in case of reassessment, from the date of such reassessment." (Emphasis supplied) 6. The Deputy Commissioner of Customs rejected the claim for refund in respect of the said three bills of entry on the ground that it was barred by limitation. The petitioner challenged this order by filing Civil Writ Petition No. 13859 of 2016 which was disposed of by an order and judgment of this Court dated 27-1-2017 to which one of us (S.J. Vazifd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, the Appellate Tribunal or any Court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction. Undoubtedly, therefore, the period of limitation would, absent anything else, commence in the petitioner's case from 9-5-2013. However, sub-section (1B) opens with the words "Save as otherwise provided in this section …………". It is, therefore, subject to anything to the contrary in the section. The second proviso to sub-section (1) expressly states that "the limitation of one year shall not apply where any duty or interest has been paid under protest". Clause (b) of sub-section (1B) does not alter this position. The second proviso to sub-section (1) and sub-section (1B) cannot stand together. It follows, therefore, that the second proviso falls within the ambit of the words "Save as otherwise provided in this section ….." in sub-section (1B). 10. Sub-section (1B) only stipulates the terminus a quo. It does not affect the second proviso to sub-section (1). Sub-section (1B) is not a stand alone section. Sub-section (1B) by itself has no meaning or existence. It must be read together with sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11B. Claim for refund of duty and interest, if any, paid on such duty. - (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person : …. ….. ……. ……… ……….. ……. ……… ……… ……. …… ….. Provided further that the limitation of one year shall not apply where any duty and intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty." Under Section 11B, the application for refund of duty of excise must be made "before the expiry of one year from the relevant date." "Relevant date" is defined in Explanation (B)(ec). Thus, the application for refund must be made before the expiry of one year from the date of the judgment, decree, order or direction of the authority, Tribunal or Court. What is important and what is different in Section 11B of the Central Excise Act from Section 27 of the Customs Act is that Section 11B does not contain a provision similar to sub-section (1B) of Section 27 of the Customs Act, 1962 which opens with the words "Save as otherwise provided in this section". Thus, Explanation (B) including clause (ec) thereof is not subject to the proviso. Under Section 27 of the Customs Act, sub-section (1B) is subject to the second p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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