9911796707
TMI Blog2019 (5) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition is for a writ of Certiorarified Mandamus seeking quash of letter dated 19.07.2016, issued by the Assistant Commissioner of Customs and to direct the respondents to refund the excess duty paid in Bill of Entry No.4888763 dated 12.04.2016. 4.Facts and issues as submitted by Mr.Joseph Prabakar, learned counsel for the petitioner as follows: (i)The petitioner has imported 100Kg of 'Tea Flavour - Black' from IFF(Australia) Pty Ltd on 07.04.2016, under Bill of Entry No.4888763 dated 12.04.2016. Duty was computed at a sum of Rs. 20,85,274/-, payable on an assessable value of Rs. 70,82,891/- and was duly remitted on 13.04.2016. The goods were cleared on 23.04.2016. (ii)Thereafter, a mistake was noticed in the invoice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming change on the ground that the supplier had wrongly mentioned unit price in the invoice and that they wrongly filed the said Bill of Entry with the Incorrect unit price, resulting in payment of excess duty of Rs. 20,55,010/-. However, it is seen from your refund application that the Bill of Entry submitted by you in your application is not re-assessed by the concerned assessing group. An order of assessment given by the competent authority i.e. the concerned Group cannot be reviewed or modified by the Refund section. As held by the Apex Court in the case of M/s.Priya Blue Industries Vs Commissioner of Customs(2004 (172) ELT 145(SC)- "Refund will arise only if such order is lawfully modified or revised". Therefore, it is advised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding is called for to reflect any change in Unit price and that such amendment effected only by the 'Proper Officer'. Such amendment has not been done in the present case and in the absence of the same and consequent assessment of the proper value of the units and consignment imported, the impugned order is perfectly correct and no interference is warranted. 10. The petitioner relies on a decision of this Court in the case of Micromax Informatics Ltd Vs Union of India(2016 (335) E.L.T. 446(Del.)21) and a decision of the Delhi High Court in the case of Aman Medical Products Ltd. v. Commissioner(250 ELT 30). The petitioner has also relied upon the following decisions: Rawmin Mining and Industries Pvt.Limited Vs.C.C.(Prev.) Jamnagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus distinguishable on facts. 12. Heard learned counsel. 13. The provisions of Section 27 and 149 have been cited by learned counsel before me. It is thus apposite that I extract the same for clarity: 27. Claim for refund of duty (1)Any person claiming refund of any duty or interest, (a)paid by him; or (b)borne by him, may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest:.... (2)If, on receipt of any such application, the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] is satisfied that the whole or any part of the [dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Commissioner of Customs or Deputy Commissioner of Customs. 15. Thus, prior to 2011, when Section 27 was amended, a person was entitled to seek refund only in a situation where the claim arose out of the payment made by him in pursuance of an order of assessment or borne by him in pursuance of an order of assessment as per the law settled by the Supreme Court in the case of Priya Blue Industries (supra). 16. Subsequent to amendment of Section 27, the provisions of Section 27 have been considerably widened, as a result of which, after 08.04.2011, a claim for refund would lie in respect of any amount paid or borne by a person. The amended provision reads thus: 17. This aspect of the matter has been completely lost sight of by the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the refund applications by wrongly appreciating the ratio of the decision rendered in Priya Blue Industries case. The said decision, as indicated above, was rendered prior to the 2011 amendment made to Sections 17 and 27 of the Act." 20. In the light of the above discussion, the impugned letter is quashed and the petitioner is permitted to re-submit its application for refund within a period of two(2) weeks from today. The said applications will be considered by the respondents on merits and in accordance with law. I may mention here that the provisions of Section 27(2), extracted elsewhere in this order, provide for a refund to be granted only upon satisfaction of the Officer concerned that the whole or any part of the refund sought is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
