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TMI Blog2008 (3) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... mesh Nair, Advocate, for the Appellant. Dr. Y. D. Banga, SDR, for the Respondent. [Order] - This appeal is directed against the order-in-Appeal No. 54/2005/CAC/CC/PK dt. 05/08/05. 2. The issue involved in this case is regarding the rejection of the refund claim filed by the appellant. The appellant discharged the duty liability by paying the duty at the rate of 50% instead of paying 5%. Subsequently, they filed an application for the refund of the excess duty which was rejected, which traveled up to Hon'ble Supreme Court and Supreme Court vide order dt. 13.3.2001 held as under:- "Learned counsel for the appellants submits that the real issue here is that, apparently as a result of a clerical error, countervailing duty was cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t [2006 (72) R.L.T. 479 (CESTAT-Mum)] in the said judgment and order is followed by the co-ordinate bench at Delhi in the case of Canon India Pvt. Ltd. Vs. Commissioner of Customs, Mumbai as reported at [2006 (200) E.L.T. 83 (Tri.-Del.)]. 4. The Ld. SDR would contend that the issue involved in this case is a arithmetical error which has been allowed by the adjudicating authority. It is his submission that any refund arising out of such rectification of mistake is also bound by the provisions of Section 27 of the Act. The question of unjust enrichment and the provisions of Section 27 over ride all other sections in the case of refund of the duty which has been collected by the Revenue. It is also his submission that the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter of Mafatlal Industries as reported in [1997 (89) ELT 247 (SC)]. It has been pleaded by the ld. Counsel that there would be no relevance of Section 154 if time limit of Section 27 is applied. If this interpretation is accepted then there would be no relevance of time limit prescribed under Section 27. In my opinion provisions of Section 154 do not override Section 27". It can be noticed from the above reproduced portion of the order, that the Ld. Commissioner has not considered the law as has been settled by the Hon'ble High Court of Bombay in the case of Keshari Steels. Their Lordships in the case of Keshari Steels (Supra) held as under:- "In our view, in the present case, there was no question at all of applying the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misapplying excise and customs laws in Para 99 (i) and refund arising from unconditional levy in Para 99 (i) and states that in case of the former the refunds have to be dealt under the customs and excise law while in case of the latter, the principles under the Limitation Act, 1963 will apply. Mafatlal (supra) therefore, is not of help in deciding a case of refund arising out of an independent provision relating to corrections under Section 154 of the Customs Act, 1962 itself. On the other hand, we find that the learned Consultant for the appellants has cited two decisions of the Hon'ble High Court of Bombay in the case of TELCO (supra) and Keshari Steels (supra) of which the latter decision has also been confirmed by the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I am of the view that the rejection of the refund claim of the appellant on the ground of time bar under the provisions of Section 27 of the Customs Act, 1962 is not in accordance with the law, as has been settled by the higher judicial forums. Hence, the impugned order holding it so, is unsustainable and liable to be set aside and I do so. 8. Since the question of unjust enrichment will apply to this case and as has been fairly admitted by the Ld. Advocate, it was not considered by the lower authority, I find it fit in the interest of justice, the matter should be remanded back to the original authority to consider the question of unjust enrichment. In light of the above, the appeal is allowed and the matter is remanded back to the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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