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TMI Blog2020 (1) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was lesser than the quantity mentioned in the bill of landing, was justified and upheld the difference in duty levied, was required to be refunded, the quantity which actual landed, was the duty on quantity laded and therefore, the petitioner's contention was upheld by the Appellate Commissioner under it's order dated 4.12.2013 and confirmed by the CESTAT under its order dated 8.,09.2014. Therefore, there was no justified reason whatsoever for denying the refund to the petitioner. The petitioner is entitled to receive refund as per his claim contained in his application dated 8.8.2015 in accordance with law and the same shall be granted to the petitioner within a period of four (4) months from the date of receipt of writ of this Court - Petition allowed. - R/SPECIAL CIVIL APPLICATION NO. 5190 of 2019 - - - Dated:- 26-12-2019 - MR. S.R. BRAHMBHATT AND DR. A.P. THAKER JJ. Appearance: MR MAULIK NANAVATI WITH MR SUJIT GHOSH WITH MR. NANVI DHANLE WITH MR MANNOT WARAICH WITH MR ABHISHEK SHARMA FOR NANAVATI AND CO.(7105) for the Petitioner MR NIRZAR S DESAI(2117) for the Respondent(s) No. 1 RULE SERVED( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed thereon on 9.9.2015, it can well be said that it was within prescribed statutory limitation under Section 27 as the final order of CESTAT dated 4.12.2013 was received by the petitioner on 29.9.2014 and the written application was made on 8.9.2015, which was based stamping on 9.9.2015. Hence, it can be said to be well within time. The learned counsel for the respondent also contended that the section 27 was attracted even for the claim of refund of difference in duty and in view of the judgment of Supreme Court in case of Mafatlal Industries Ltd and others Vs. Union of India and others, reported in (1997) 5 SCC 536, followed by this court, was not permissible to be raised outside the purview of Section 27 of the Customs Act. The counsel for the petitioner thereafter expressly confided his submission qua the refund application being in time and urged the Court that the submission canvassed on behalf of the petitioner for supporting the claim of the petitioner that the refund application was within time only be considered to be submission and rest of the submission qua non-applicability or non-applicability of the limitation thereunder on the basis of the contention that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice dated 3.11.2015 alleging that the refund application was filed on 9.9.2015, after the expiry more than one year from 4.12.2013, which was the date of the order of the Commissioner (Appeals) and is thereby liable to be rejected under Section 27 of the Customs Act, 1962. The respondent no. 1 adjudicated the show cause notice and rejected the refund claim amounting to ₹ 9,59,27,205/- filed by the petitioner vide Order-in-Original No. 85/AC/SRT/REFUND/2015 dtd 4.12.2015. This position was affirmed by the respondent no. 2 vide Order-in-Appeal No. AHD-CUSTOM-000-APP-064-16-17 dtd 2.1.2017 and the Tribunal vide its order No. A/11614/2018 dated 1.8.2018 rejected the claim of refund of petitioner. The petitioner has assailed said order dated 1.8.2018 by preferring present petition under Articles 226 and 227 of Constitution of India. 4.5 The application for refund said to have been filed on 8.8.2015 but it bears the stamp of receipt of 9.9.2015 and therefore, that date needs to be taken into consideration for reckoning the period of limitation. 5. Learned counsel for the petitioner, as it is stated hereinabove, advanced at length various points but h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of the petitioner that the claim of refund could be said to have been accrued only on final conclusion by the CESTAT of the dispute in its order dated 8.9.2014 and thereafter when the order was received by the petitioner. The CESTAT though referred to the decision of Supreme Court in case of Dena Snuff (supra) did not appreciate the real ratio laid down in the judgment and therefore, to that extent the order of the Tribunal dated 1.8.2018 is untenable in eye of law. 8. The learned counsel for the petitioner also contended that the factual aspect as obtained in the case would clearly go to show that the application for refund dated 8.8.2015 made by the petitioner and bearing the stamp of receipt of 9.9.2015, could be said to be application made within prescribed time under Section 27 of the Customs Act as prior to the receipt of the order of the Tribunal dated 4.12.2013, it would not have been possible for the petitioner to successfully raise the claim of refund. 9. Learned counsel for the petitioner has relied upon the decision in case of Vikas Global One Ltd Vs. Commissioner of Customs, Nhava Sheva, reported in 2014 (302) ELT 272 (Tri.-Mumbai), co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the expiry of three months from the date of receipt of such application till the date of refund of such duty. It is a matter of relevance that on the dismissal of the assessees claim by the Tribunal dated 01.08.1997, wherein the Tribunal allowed the Revenue s appeal in the first round of litigation, the claim by the assessee could not be said to be alive for all practical purposes. It is only after the order of the Tribunal dated 17.03.1999 dismissing the Revenue s appeal that the right of the assessees to claim refund could surface. [14] Going by the clear provisions available under Section 27A of the Customs Act, we hold that the assessees would be entitled to interest on the expiry of three months from the date of receipt of the application to the date of refund of such duty and on no account they would be entitled to interest on the amount paid under protest from the date of payment, as had been claimed by them. We also make it clear that the refund claim could be validly held to be made only on the disposal of the appeals by the Tribunal and not any date prior to that, which means, the date on which the order was passed by Collector of Customs (Appeals) would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registry of CESTAT having taken the necessary steps in accordance with the requirement of law to effect service nothing further was required to be done by the said authority, and therefore, the ROM Application had been rightly held to be barred by limitation, and hence there was no scope for any intervention. Para-12 : Under Section 37C of the Act a provision is made prescribing the mode of service of any decision or order, any summons or notice issued under the Act or the rules made thereunder. Under clause (a) of Section 37 C of the Act it is laid down that the decision, order etc. should be sent by Registered Post with acknowledgment due ; in the case of failure to effect service in the mode prescribed under clause (a), clause (b) stipulates that the same shall be done by affixing a copy thereof to some conspicuous part of the factory etc ; and lastly, in the event of failure to effect service by the mode prescribed under clause (b), clause (c) provides that the service be effected by affixing a copy thereof on the notice board of the officer or authority who or which made the order etc. Under sub section (2) of Section 37 C of the Act, a statutory presumption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is said to have been paid under protest, he also does not press into service the decision of this Court, wherein, one of us (Hon'ble Mr. Justice S.R. Brahmbhatt) is party, rendered in Special Civil Application No. 10435 of 2018 dated 4.9.2019, as the issue in the present case is only whether the claim for refund was filed within the time limit prescribed or not. 15. Learned counsel appearing for the respondent further submitted that the refund claim is not required to be granted on two counts namely that the claim for refund said to have arisen when the Appellate Commissioner passed an order on 4.12.2013 in favour of petitioner. Apart therefrom, the language of Section 27 also would persuade this Court to hold that time limit would start from the date of order and it cannot be said that the time limit will start running from the date of receipt of the order, else it would amount to accepting all and any other grounds to be pressed into service for extending the limitation prescribed under Section 27. 16.Learned counsel appearing for respondent heavily relied upon the decision of Tribunal to justify his contention qua denial of refund and prays for dismissal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The provisions of Section 27 of the Customs Act, 1962 reads as under : Section 27: Claim for refund of duty - 1. xxx xxx xxx (1A) xxx xxx xxx 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 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 re-assessment, from the date of such re-assessment. 19. In the instant case, it is true that Appellate Commissioner rendered its decision in favour of petitioner on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reported in (1997) 5 SCC 536 , unfortunately appears to have been not appreciated by the Tribunal, else, it would not have been a case treating the petitioner's application for refund being time barred. It is required to be noted that in fact the ratio of the judgment in case of Dena Snuff (supra) so far as it provides for claim of refund in a case of assessee is on the basis of the finality of the issue in the case of that assessee himself would rather support the case of the petitioner as in a case of present petitioner. The order rendered by the Appellate Commissioner on 4.12.2013 could not be said to have rested the controversy as the department itself had chosen to prefer an appeal challenging the same sand therefore, till the Tribunal rendered its judgment on 8.9.2014, and the order was received by the petitioner, it can be said that the claim of the petitioner for refund could not have been said to have been finally decided by the Court or Tribunal so as entitled him to raise the refund claim. 21. The counsel for the petitioner has invited this Court's attention to the provisions of Sections 131A and 153 of the Act, which read as under : Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well within one year from the date of the order holding finality that the petitioner was entitled for refund, on the basis of its contention that the duty was to be leviable only on the quantity that landed. 22. We are of the considered view that when the petitioner s claim that it was not liable to pay duty on the quantum mentioned in the bill of landing as the actual quantity landed was lesser than the quantity mentioned in the bill of landing, was justified and upheld the difference in duty levied, was required to be refunded, the quantity which actual landed, was the duty on quantity laded and therefore, the petitioner's contention was upheld by the Appellate Commissioner under it's order dated 4.12.2013 and confirmed by the CESTAT under its order dated 8.,09.2014. Therefore, there was no justified reason whatsoever for denying the refund to the petitioner. Even otherwise also the withholding of refund amount was not justified in any manner especially when the undisputed facts mentioned hereinabove would clearly indicate that the Tribunal upheld the claim of the petitioner only on 8.9.2014 and that being the date of attaching finality to the petitioner s entitl ..... 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