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TMI Blog2023 (1) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. In any case the refund application would not have been acknowledged by the department till it was filed along with all the documents. Undisputedly the necessary documents which were required for filing this refund application were under seizure, and the refund application would not have been acknowledged by the revenue authorities without these documents. The condition which is stated to be the reason for rejection of the refund claims is something which could not have been complied with. Appeal allowed. - Customs Appeal No. 85024 of 2020 - FINAL ORDER NO. A/85003/2023 - Dated:- 4-1-2023 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Ganesh K.S. Iyer, Advocate, for the Appellant Shri S.K. Hatangadi, Assistant Commissioner, Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. MUMCUSTM-PREV-APP-572-19-20 dated 27.09.2012 passed by the Commissioner of Customs (Appeals), Mumbai-III, by which the Commissioner (Appeals) has upheld the Order-in-Original No. 1/ICD-Tarapur/2018-19 dated 16.05.2018 of the Assistant Commissioner of Customs (Prev.), ICD Tarapur. By this order, Assistant Commissioner has rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in para 1 above. Appeal filed by the appellant against this order has been rejected by the impugned order. 3.1 I have heard Shri Ganesh K.S. Iyer, Advocate for the appellant and Shri S.K. Hatangadi, Assistant Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits as follows:- The refund claim could not be filed as the original files/documents/Bills of Entries were seized by Superintendent(Preventive) on 10.3.17 as per Panchnama dated 10.3.17. The order of Assistant Commissioner dated 16.5.2018 is not disputing the fact that the documents pertaining to the subject refund claim were seized by the department during the course of investigation pertaining to imports covered in two other Bills of Entry No.8740810 dated 2.3.17 and 8738425 dated 2.3.17. Appellant had requested the department to return the original files/documents/Bills of Entries pertaining to the refund application vide letters dated 16.3.17, 21.3.17, 3.4.17, 26.4.17, 4.9.17, 8.9.17, 28.9.17 and 31.10.17. The files were returned only on 11.1.18 and Appellants had filed their application on 21.2.18. Appellant relies upon the following decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the power to refund is found in Sec 27 of the Customs Act, 1962. The said Notfn No. 102/2007-Cus dtd. 14.9.2007 and amending notification 93/2008-Cus dtd. 1.8.2008 grants exemption which is conditional derives its power to grant in the substantive law which has already set outer time limit. 11. I find that the appellant has not filed the refund claim within stipulated period of one year from the date of payment of Additional Customs duty as prescribed under Notfn No 102/2007- Cus dtd. 14.9.2007 as amended by Notfn No. 93/2008 dtd. 1.8.2008. I find that the appellant has submitted Chartered Accountant's Certificate certifying that the Sales Tax / VAT has been charged and paid on all the imported goods by the Sales Tax Authorities. Also that the Additional Customs Duty has been paid by the importer and the burden of the Additional Custom Duty has not been passed on to the buyers of the goods by the Importer. I find that this has been certified by the Chartered Accountant Certificate under the Companies act, 1956 and this proof should have been brought to the jurisdictional officer before the stipulated period of one year for filing the SAD refund. 12. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of actual sale too. 4.3 Counsel for the appellant submitted a date chart which is reproduced below:- Bill of Entry no. Date of Payment date of sale Date of seizure of documents Last date of filing refund claims as per date of payment Last date of filing refund claims as per date of sale Date of receipt of seized documents A B C D E F G 7057836 15.10.16 26.11.16 10.3.17 14.10.17 25.11.17 11.1.18 7202544 26.10.16 05.12.16 10.3.17 23.10.17 4.12.17 11.1.18 7202547 26.10.16 08.12.16 10.3.17 23.10.17 7.12.17 11.1.18 7202549 26.10.16 08.12.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Date of deficiency memo 9.3.18 6. Date of reply to deficiency memo 20.3.18 4.4 Section 27 of the Customs Act, 1962 reads as follows:- Section 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 Asstt. Commissioner of Customs or Dy. Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest. Provided that .. : Provided further .. : Provided also ... Explanation . - . (1A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on by him to any other person. 4.5 In the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipt of the application. (3) Where on scrutiny, however, the application is found to be incomplete, the Proper Officer shall, within ten working days of its receipt, return the application to the applicant, pointing out the deficiencies. The applicant may resubmit the application after making good the deficiencies, for scrutiny. Explanation . - For the purposes of payment of interest under section 27A of the Act, the application shall be deemed to have been received on the date on which a complete application, as acknowledged by the Proper Officer, has been made. Custom Manual, 2018 issued by Central Board of Indirect Taxes Chapter 14 Refund at para 7 reads as follows: 7. Expeditious disposal of refund applications: 7.1 The procedure to ensure expeditious disposal of Customs duty refund applications and to enhance transparency in refund disbursement is as follows: (a) Receipt and acknowledgement of all refund applications: All refund applications made under Section 27 of the Customs Act, 1962 whether by post or courier or personal delivery, shall be received by the department and a simple receipt of having received the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account of Central Excise Department or Customs Department. The legislative scheme does not provide for any other exception or mitigating factor and there can be no other circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation. Then, this would be delay occasioned owing to such reason and circumstance, which is beyond control of the claimant. Paras 20, 21 and 22 of the judgment read as under :- 20. Thus, considering the matter from any angle it becomes apparent that the interpretation placed by Revenue on provisions of section 11B of the Act read with paragraph No. 2.4 of the CBEC Manual cannot be accepted the same being contrary to the object and purpose of the scheme. It cannot be held that the petitioner was at fault in making the claim belatedly, because in fact the period of limitation has to be considered in light of availability of the requisite documents, i.e., from the said point of time. 21. The view adopted by the Revisional Authority that a departmental authority is bound by the prescribed period of limitation and cannot condone any delay also does not merit acceptance in light of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependently. Since notification issued under Rule 18 did not prescribe time limit, it was held that Section 11A of the Act, which provides six months time for claiming rebate, would not be applicable to deny rebate claim of the petitioner. 14 . The Madras High Court in Dy. Commissioner of C. Ex., Chennai v. Dorcas Market Makers Pvt. Ltd., supra, has also taken a similar view with regard to Notification No. 19/2004-C.E., dated 6-9-2004, which superseded the previous Notification No. 41/94-C.E. that it did not contain the prescription regarding limitation, and held that a conscious decision taken by Central Government dismissing application for refund as time barred is unjustified. In Exclusive steels Pvt. Ltd. v. Union of India, supra, also, a Division Bench of Gujarat High Court held that the only circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation would be where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department. 15. The judgment of the Supreme Court in Miles India Limited, supra, relied on by the Revenue, is not an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or Customs Department, this would be mitigating circumstance flowing from the aforesaid legislative scheme. Limitation is to be considered in the light of availability of requisite documents and should be taken to begin when documents necessary for substantiating the claim of refund are furnished by the department, which, in our considered view, should be the starting point for computation of limitation. In the case of Kaamdaa Impex [2021 (377) ELT 21 (Mad.)], Hon ble Madras High Court has held as follows:- 15 . The petitioners plead Lex non-cogit ad impossibilia in filing of refund claims in time. According to the petitioners, they had to liaison with the Directorate of Revenue Intelligence to get copies of the Bills of Entries and since the Bills of Entries were not given to the petitioners in time, there was a delay in filing the refund claims. It is therefore submitted that seizure of documents by the Directorate of Revenue Intelligence cannot be against the petitioners. 16. On the other hand, it is the contention of the respondents that nothing prevented the petitioners from filing the refund claims in time. 17. The Directorate of Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Copy of Mahazer of the said writ petitioner has not been filed. 23. In my view, denial of refund claims based on the limitation prescribed under the Notification cannot be justified and imposed against the petitioner M/s. Kaamdaa Impex as all the documents of the said petitioner were admittedly seized as per the Mahazer dated 2-7-2013. The said writ petitioner could not have filed the refund claims in absence of the vital documents. 24. Therefore, the impugned orders impugned in W.P. Nos. 22385 and 22386 of 2016 and W.P. No. 24269 of 2016 denying the benefit of refund of Special Additional Duty paid under Section 5(3) of the Customs Tariff Act, 1975 are quashed and cases are remitted back to the second respondent to pass a fresh order of refund of the amounts paid by the petitioner at the time of import, if the said writ petitioner has otherwise satisfied the other requirements of Notification No. 102/2007-Cus., dated 14-9-2007 as amended by Notification No. 93/2008-Cus., dated 1-8-2008. Respondents shall pass orders on the balance refund claims within a period of three months from date of receipt of a copy of this order. 25. Insofar as the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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