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TMI Blog2021 (7) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... h the requirements of unjust enrichment. The petitioner is therefore also directed to file a refund application before the respondents, within a period of one month from the date of receipt of a copy of this order. This Writ Petition stands partly allowed. - W.P. No. 22441 of 2018 and M.P. No. 26299 of 2018 - - - Dated:- 19-1-2021 - C. Saravanan, J. Shri Rajesh Rawal, for the Petitioner. Shri V. Sundreswaran, for the Respondent. ORDER The present Writ Petition has been filed for a writ of mandamus to direct the respondent to refund the excess amount of tax paid by the petitioner amounting to ₹ 73,84,192/- against assessment in Bill of Entry No. 5409602, dated 1-3-2018. 2. The petitioner had imported 6,000 metric tons of RBD Palm Oil pursuant to a contract with the supplier on 15-1-2018. In respect of the aforesaid cosignments, three bill of lading dated 24-1-2018 were issued by the shipper. 3. In this Writ Petition, we are concerned with clearance of 1000 metric tons of RBD Palm Oil cleared vide Bill of Entry No. 5409602, dated 1-3-2018. By Notification No. 50/2017-Customs, dated 30-6-2017 RBD Palm Oil was subject to customs duty at 40%. This d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublish the same exclusively by electronic mode, so as to attribute knowledge to the public at large. The notification was signed by Rakesh Sukul on 6-3-2018 at 19:15:13 + 05 30 . When notification needs to be signed digitally and only when the notification was uploaded and published in the Official Gazette, the same is made available foro public. Perhaps, to avoid such contingency to give effect to the notification on the date of publication, the Government of India amended sub-section (4) of Section 25 of Customs Act, 1962. But, sub-section (1) and sub-section (2A) of Section 25 were not suitably amended and they remained as it is. Therefore, sub-sections (1), (2A) and (4) of Section 25 are running contra to one another, creating confusion in the minds of public at large, at least to the person who is dealing with the department. Thus, it is evident from the record that the notification was not signed at least by the competent authority on the date of presentation of ex-bond bill of entry before the competent authority for release of imported goods for human consumption in accordance with Section 15(1)(b) read with Section 68 of the Customs Act for clearance of the goods for human ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal, ultra vires and unconstitutional and to strike down the same accordingly and consequently declare Notification No. 29/2018-Customs, dated 1-3-2018 as illegal, arbitrary, ultra vires and infringing the fundamental right of the petitioner to trade an otherwise bad in law. As per Section 25(4) of the Customs Act, 1962 every notification issued under sub-section (1) and sub-section (2A) shall, unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette. 7. The 1st Bench of this Court after considering the above 2 cited decisions of the Andhra Pradesh and Telangana High Court and the Delhi High Court allowed the writ petition by its order dated 14-7-2020. While allowing the writ petition, the 1st Court also directed the respondents to refund the entire amount of excess duty paid by the petitioner under protest within a period of 2 months from the date of the order. 8. It is therefore submitted that the respondent were duty bound to refund the amount in terms of the above decision of this Court in W.P. No. 21207 of 2018. 9. I have considered the arguments advanced by the Learned Counsel for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r protest. It is difficult to imagine that a manufacturer would pay the duty without protest even when he contests the levy of duty, its rate, classification or any other aspect. If one reads the second proviso to sub-section (1) of Section 11-B along with the definition of relevant date , there is no room for any apprehension of the kind expressed by the Learned Counsel. 15. Again in para 91, the Hon ble Supreme Court in Mafatlal Industries v. UOI, 1997 (89) E.L.T. 247 = (1997) 5 SCC 536 has also observed as follows :- All claims for refund, arising in whatever situations (except where the provision under which the duty is levied is declared as unconstitutional), has necessarily to be filed, considered and disposed of only under and in accordance with the relevant provisions relating to refund, as they obtained from time to time. We see no unreasonableness in saying so. 16. The Hon ble Supreme Court in Mafatlal Industries Ltd. v. Union of India, 1997 (89) E.L.T. 247 = (1997) 5 SCC 536 has also observed as follows :- We do not think it is possible to agree. Such a holding would run against the very grain of the entire philosophy underlying the 1991 Amendment. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of refund and excluded the jurisdiction of the civil court in respect of all refund claims. Sub-rule (3) of Rule 11 or sub-section (3) of Section 11-B (prior to 1991) did not say that refund claims arising out of or as a result of the orders of a superior authority or court are outside the purview of Rule 11/Section 11-B. They only dispensed with the requirement of an application by the person concerned which consequentially meant non-application of the rule of limitation; otherwise, in all other respects, even such refund claims had to be dealt with under Rule 11/Section 11-B alone. That is the plain meaning of sub-rule (3) of Rule 11 and sub-sections (3) and (4) of Section 11-B (prior to 1991 Amendment). There is no departure from that position under the amended Section 11-B. 17. If the petitioner wants relief, in terms of the decision of the Hon ble Division Bench in W.P. No. 21207 of 2018 it is open to the petitioner to approach the Hon ble Division Bench and file appropriate application for enforcing the said order and also for punishing the respondent for non-compliance with the said order as the respondents are duty bound to refund the amount paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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