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TMI Blog2021 (4) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ivered Duty Paid. The appellant-Company, based upon the authorization of M/s. BEML, arranged for the customs clearance of imported consignment through its customs house agent M/s. Skyline Air Logistics Ltd. by submitting a bill of entry for paying the duty of customs. The appellant-Company's contention is that the current duty of customs payable on the value of cost specified in the bill of entry was at Rs. 4,743/-, as against which, the appellant-Company discharged duty of customs to the tune of Rs. 42,31,718/- resulting in excess payment of Rs. 42,26,975/- on account of arithmetical error while computing the liability. The appellant-Company has stated that the said duty was deposited vide TR 6 Challan No.98006935 on behalf of M/s. BEML, which is an importer. The goods were cleared vide bill of entry dated 5.3.2009. It has been stated by the appellant-Company that the excess payment of custom duty was due to clerical error. The appellant-Company wrongly applied the exchange rate while determining the assessable value in the bill of entry. The appellant-Company further submitted that the currency indicated in the invoice was KRW (Korean Krones) and KRW is not a listed currency. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant-Company is that as per the reassessed bill of entry, the correct assessable value works out to Rs. 19,416/- and the actual customs duty payable is Rs. 4,743/-. The appellant-Company, vide letter dated 31.12.2009 filed on 6.1.2010 before the Deputy Commissioner, sought for refund of excess duty. The contention of the appellant-Company is that this application has not been adjudicated by the Deputy Commissioner of Customs till date. 4. The Assistant Commissioner issued a show cause notice on 11.7.2011 in respect of the refund application dated 16.4.2009 filed by M/s. BEML alleging that M/s. BEML, as the importer, had not borne the incidence of customs duty and therefore, M/s. BEML is not eligible to claim the said refund under Section 27 of the said Act of 1962. It was stated that the customs duty was paid by the appellant-Company and excess duty was paid by it and therefore, was not entitled for reimbursement. M/s. BEML filed a detailed reply before the Assistant Commissioner objecting to the show cause notice and requesting for issuance of refund under Section 27 of the said Act of 1962 in favour of the present appellant-Company. M/s. BEML also submitted before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962 ? 7. The Tribunal, while dismissing the appeal preferred by the present appellant, in paragraphs-4 to 7 of the impugned order, has held as under: "4. Learned counsel for the appellant submitted that the impugned order is not submitted that the impugned order is not sustainable in law as the same has been passed without considering the facts and circumstances and the position of law. He further submitted that the appellants have furnished all the documents which were required for claiming the refund. He further submitted that the appellants are the agents of M/s.BEML who are the importers and the owners of the goods and the duty was paid by them on behalf of M/s.BEML as their agent. He also submitted that the appellants are well within their right to file the refund of excess duty in terms of Section 27 of the Customs Act, 1962. He further submitted that once amendment to the Bill of Entry is permitted the excess duty is liable to be refunded without an application for refund under Section 27 of the Customs Act. He also submitted that the excess duty paid on account of clerical error is only a deposit and not the duty and therefore the provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 89 and the relevant para is reproduced herein below: 9. Section 154 only mentions about corrections of clerical and arithmetical error and it does not mention about the consequential relief of refund of those amounts which accured due to the above said corrections. The Supreme Court has also held in the Doaba Cooperative Sugar Mills' case that if the payment of duty was made under a mistake of law the appellant may seek recourse to such an alternative remedy. In this case, even though the payment of duty is due to arithmetical or clerical mistake, still the only provisions for refund under the Customs Act is Section 27 of the Customs Act, 1962 and there is no other provision providing for a refund by the Customs authorities under the above mentioned Act. In such cases, the parties filing refund applications have to be regulated and restricted to the time limit provided under the Act. The Supreme Court has upheld the decision of this Tribunal reported in 1983 (13) E.L.T. 1026 in the case of Miles India Ltd., V. Appellate Collector of Customs. It was held in that decision by the Tribunal that any claim filed before the Customs authorities for refund of the excise duty has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty of the customs payable on the transaction in question under the statute is only Rs. 4,743/- and therefore, the payment of duty over and above the aforesaid amount paid by the appellant is also beyond the statute and thus, retention of the same excess amount by the respondent- Authority is without authority of law. The learned Counsel has also placed reliance upon the following judgments: (i) Commissioner OF Central Excise (Appeals) Vs. KVR Construction reported in 2012 (26) STR 195 (KAR) (ii) Geogit BNP Paribhas Financial Services Ltd. Vs. CCE reported in 2015 (39) STR 706. (iii) Hind Agro Industries Limited Vs. Commissioner of Customs reported in 2008 (221) STR 336 (iv) G.B. Engineers Vs. UOI reported in 2016 (43) STR 345 (v) Joshi Technologies International Vs. UOI reported in 2016 (339) ELT 21 The learned Counsel has prayed for quashment of the order passed by the respondent-Authorities. 9. On the other hand, learned Counsel for the respondent-Revenue has vehemently argued before this Court that the Authorities are justified in rejecting the claim of the appellant keeping in view Section 27 of the said Act of 1962 and by no stretch of imagination, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby, the prayer of M/s.BEML has been turned down on the ground of limitation and finally, the application submitted by the appellant-Company has also been rejected by the competent authority. The refund application preferred by the appellant-Company was rejected on the ground that the duty of the customs was paid on 7.3.2009 whereas the refund application was received on 6.6.2012 meaning thereby, not within the period of limitation under Section 27 of the said Act of 1962. The matter has travelled up to Tribunal and the Tribunal has decided against the appellant Company. 13. Section 27 of the said Act of 1962 reads as under: 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: Provided that where an application for refund has been made before the date on which the Finance Bill, 2011 receives the assent of the President, such application shall be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner of Customs or Deputy Commissioner of Customs under the foregoing provisions of this subsection shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -- (a) the duty and interest, if any, paid on such duty paid by the importer, or the exporter, as the case may be if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (b) the duty and interest, if any, paid on such duty on imports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75; (f) the duty and interest, if any, paid on such duty borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify; Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been corrected and the Tribunal has erred in observing that the payment of excess duty requires to be rectified under Section 154 of the said Act of 1962. The Authorities ought to have refunded the said excess amount to the appellant- Company either upon their application or on an application made by the importer. In the case of Mafatlal Industries Ltd. (supra), it has been held that in order to claim excess duty paid, which falls outside the purview of the said Act of 1962, the limitation provided under Section 27 is not applicable. Hence, the appellant-company is certainly entitled for refund of duty. 16. In the case of KVR Construction (supra), this Court relying upon the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) has held as under: "23. ...... When once there was no compulsion or duty cast to pay this service tax, the amount of Rs. 1,23,96,948/- paid by Appellant under mistaken notion, would not be at duty or 'service tax' payable in law. Therefore, once it is not payable in law there was no authority for the Department to retain such amount. By any stretch of imagination, it will not amount to duty of excise to attack section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeals forming part of the batch of matters in which the judgment of the Constitution Bench in Mafatlal Industries V. Union of India-1997 (89) E.L.T. 247 was rendered.............. ............ 16. There can be no manner of doubt that the custom authorities in the instant case were bound to refund the cess erroneously paid by the Appellants for the period from 15th January, 2001 till 19th February 2002 under a mistake of law. They had paid the cess when in fact no such cess was payable. There is no question of processing a claim of refund of such amount in terms of the Customs Act at all because the payment made mistakenly was not under that Act. In the circumstances, the period of limitation under Section 27 of the Act would not apply, as explained in Salonah Tea Company Limited......" In the case of G B Engineers (supra), the High Court of Jharkhand has held as under; "9. Section 11 B of the Central Excise Act to be read with section 83 of the Finance Act, 1994 are not applicable to the facts of the present case because, the amount paid by the Appellant is never under the Central Excise Act nor under the service tax (provisions) when there is no liability to make th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , can be made either by way of a suit or by way of a writ Appeal. Under the circumstances, the Appellant is justified in filing the present Appeal before this court against the order passed by the adjudicating authority rejecting its claim for refund of the amount paid under a mistake." 17. In the light of the law laid down by the Hon'ble Supreme Court and the other High Courts keeping in view the peculiar facts and circumstances of the case, it is crystal clear that when the customs duty is paid in excess, the department is liable to refund the same and the limitation provided under Section 27 of the said Act of 1962 will not be applicable. Therefore, the Tribunal has erred in law and fact, solely relying on Section 27 of the said Act of 1962 while dismissing the application of the appellant-Company. 18. In the present case, as already stated earlier, the excess customs duty was paid mistakenly on account of certain error and the said mistake can be rectified under Section 154 as held by the Bombay High Court in case of KESHARI STEELS VS. COLLECTOR OF CUSTOMS reported in 2000 (115) ELT 320. The aforesaid judgment has been confirmed by the Hon'ble Supreme Court in an SLP reported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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