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TMI Blog2020 (2) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, such duty amount was deposited and paid into the consumer funds maintained under Section 12 (C) of the Central Excise Act, 1944, created for reserving such amount of duties, which are not admissible or not refunded back to the claimant, and amount of duty of customs referred to in Sub- section (2) of Section 27 or Sub-section (2) of Section 28-A or Sub-section (2) of Section 28-B of the Customs Act, 1962. 2. Facts in brief shorn of unnecessary details and required only for addressing the controversy in question deserve to be set out as under:- 2.1 The petitioner entered into a contract with a company named Messrs Tecno Export, Moscow, in 1986 for exploration of Hydrocarbon. The said contract dated 4.12.1986 was a turn key project for conducting seismic survey in North Cambay and Cambay Basins. The contract dated 19.12.1986 was for drilling of 26 numbers of exploratory wells in the North Cambay Basin. The contractor-Techno Export imported their equipment and material in sixteen consignments to Kandla Port, out of which five consignments were received in October 1986 and eleven consignments were received in February-March 1987. All the sixteen consignments were permitted to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appears to have approached the authority under communication dated 16th August 2017 produced on the compilation at page 115 for seeking refund with interest, which were totalling to Rs. 22,44,88,330.71. The reminder was sent on 10th November 2017, which is also produced in compilation at page 117. The respondents sent communication on 21.11.2017 to the petitioner seeking clarification on discrepancy/deficiency which they noticed, for ready reference, the same deserve to be extracted and reproduced here verbatim. "Please refer to your refund claim application letter dated 16.08.2017 (received in this office on 21.08.2017) for Refund of, Customs duty of Rs. 5,41,82,641.08 & Interest of Rs. 17,03,05,689.63 (Total claim of Rs. 22,44,88,330.71). In this connection, it may be noted that during the scrutiny of your above claim, it is found that you have not complied with all procedural requirements prescribed and have also not submitted requisite documents leading to delay in processing of refund claims. The following discrepancies/deficiencies have been noticed; (1) The refund claim application is not filed in the proper and prescribed performa as provided under Section 27 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit have not sold those goods covered in respective Bill of Entry and they have also not charged /recovered customs duty in invoice from buyer/ or passed on to any other firm/person. On this account they have already given C.A. Certificate. However, as regards to availing Modvat/Cenvat Credit on said duty by their unit, they explained that the matter is too old, hence they shall further comply within 15 days time." 2.5 On June 1, 2018 a communication is sent by the petitioner to the respondent reiterating the stand in respect to the refund. The custom authority sent letter on 16th July 2018 calling upon the petitioner to produce the documentary evidences to satisfy the authority that "unjust enrichment" is not likely to accrue to the petitioner on account of refund and interest amount. The following queries were made. Therefore, the communication dated 16.7.2018 deserve to be reproduced hereunder:- "Sub :Application dated 16.08.2017 for Refund claim of Customs Duty & Interest thereof; Total of Rs. 22,44,88,330.71 arising out of Order- In Assessment No.KDL/ DC/ NC/ 105/ GR-V/ 2016,dated 23.01.2017 issued by the Deputy Commissioner (GR.V), Customs House, Kandla-reg. Please ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, let there be some time for filing reply. 3. Learned advocate for the petitioner is strongly opposing and submitted that it is unnecessarily amounting to delay the final hearing of the matter. 4. We are of the opinion that the Civil Application for amendment is required to be allowed. It goes without saying that the reply, if any to the amended portion, is always permitted to be filed. Civil Application is allowed. The draft amendment shall be carried out forthwith. 5. Learned advocate for the respondent submitted that four weeks' time will be granted to place on record the reply to the amended portion that would be forming part of the main petition. 6. Learned advocate for the petitioner seriously opposes and submits that the delay in processing refund is itself sufficient and the proceedings before this Court ultimately will have to be on merits of the matter, wherein all sorts of questions may crop up including the preliminary objection of availability of alternative remedy. In that view of the matter, the Court may not grant as long as four weeks' time. Put up the main matter on 23.01.2020." 4. On 31.1.2020, the Court passed following order:- "Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed. 6.1 Learned counsel appearing for the petitioner further submitted that the respondents were not justified in tossing the file from one authority to another and they were under obligation to process the refund as soon as possible. The petitioner has not only been entitled to receive the refund but entitled to receive the refund along with interest, which may be deemed fit by the Court. 7. Per contra, learned counsel for the respondent invited the Court's attention to the affidavit-in-reply and submitted that the affidavit-in-reply along with order impugned would clearly indicate that the petitioner did not bring forward the requisite documents, which were required to be produced for seeking refund as it was a duty cast upon the claimant of refund to satisfy the concerned authority that the refund would not result into unjust enrichment to the recipient. Counsel for the respondent further submitted that the order in appeal is, in fact, appealable and, therefore, this Court under Article 226 of the Constitution of India may not entertain this petition. 7.1 Counsel for the respondent submitted that the claim of the authority for seeking appropriate documents for process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )Undertaking dated 31.05.2018 for non submission of original bills of entry (ix) Undertaking dated 31.05.2018 for non submission of relevant ledgers and duty payment challans. (x) Undertaking dated 31.05.2018 for non submission NOC of ONGC Dehradun." .............. "19. I find that, M/s. Oil and Natural Gas Corporation Ltd., Vadodara have filed Special Civil Application No.19096 of 2018 in High Court of Gujarat, Ahmedabad challenging the legality, propriety and validity of the letters dated 21.11.2017 and 16.07.2018 of the Deputy Commissioner (Refund), Custom House, Kahdla, by which necessary documents were called for to examine the aspect of "Unjust Enrichment". Vide order dated 21.11.2019 Hon'ble High Court of Gujarat has adjourned the matter to 02.12.2019 and it is held that no further time shall be granted. I find that, there is no stay in the matter by the Hon'ble High Court of Gujarat to issue refund order on merits, Therefore, I proceed to decide the matter on merits. ......... TIME LIMIT: 21. I find that, in terms of the sub-section 1 (1B) (c) of the section 27 of the Customs Act, 1962 where any duty is paid provisionally under Section 18 of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 5078 9547 515/86 25% 1270 8277 TOTAL 67894271 13711630 54182641 Therefore, after the final assessment an excess duty amount of Rs. 5,41,82,641/- paid by the claimant was quantified by the Deputy Commissioner in the Order-in-Assessment No.KDL/ DC/ NC/ 105/ GR.V/2016, dated 23.01.2017. 24. Further, sub section 2 of Section 18 of Customs Act, 1962 is extracted here; "(2) When the duty leviable on such goods is assessed, finally or re-assessed by the proper officer in accordance with the provisions of this Act, then- (a) in the case of goods cleared for home consumption or exportation, the amount paid shall be adjusted against the duty finally assessed or re- assessed, as the case may be and if the amount so paid falls short of, or is in excess of the duty finally assessed or re-assessed, as the case may be, the importer or the exporter of the goods shall pay the deficiency or be entitled to a refund, as the case may be; (emphsis supplied) Therefore, in terms of the above provisions of Section 18 (2) (a) of Customs Act, 1962 the claimant is entitled for the refund of excess duty paid for the imports made by them subject to examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry" which were necessary for the mandatory examination of the unjust enrichment before releasing the refund. Therefore the refund claim was filed by the claimant was never complete. ........ 33. In view of above discussion, I find that, the claimant is not eligible for the interest amounting to Rs. 17,03,05,689.63 as claimed by them. Now I proceed to examine the refund claim on count of doctrine of Unjust Enrichment. ........ 38. M/s. ONGC Ltd.vide letter dated 01.06.2018 stated that, matter is very old and pertains to the year 1985- 86, it is very difficult to find out the availability of such documents in their office. However regarding copy of relevant ledgers A/c indicating the custom duty paid against Bill of entry, for retrieving the ledger account and copies of Challans, the Central Account Team and Cash & Bank (PCS) Team of Basin Finance, Vadodara, has made out all efforts including through checking of the present record room as well as old record room for several days and thereafter confirmed that records were not traceable since the matter under consideration in more than 30 years old. Claimant requested to take into consideration the records available with Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sin, Makarpura Road, Vadodara-390009. (iii) The refund claim filed by M/s. Oil and Natural Gas Corporation Limited, Head Geophysical Services, Western Onshore Basin, Makarpura Road, Vadodara- 390009 for Rs. 22,44,88,330.71/- (Rupees Twenty Two Crore Fourty Four Lakh Eighty Eight Thousand Three Hundred Thirty and Paise Seventy One Only) stands disposed of in above terms." 10. The aforesaid extracted observation from the order impugned in this petition would clearly and unequivocally go to indicate that the authority has held that the petitioners were entitled for refund. The authority has held that the petitioners were entitled for even interest but the petitioners have, as per the reasoning of the authority passing the impugned order, failed in establishing that the duty amount is not based on end- user or consumers. 11. This Court is of the considered view that the process involved in processing the refund casts serious duty upon the concerned officer to advert to the facts pleaded before the authority for coming to the conclusion that though refund is payable but the same is required to be deposited and paid in the Consumer Fund for want of any document or other evidence to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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