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TMI Blog2024 (7) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... h facts and circumstances, I hold that the amount reversed by the appellant under Rule 6 (3) of CCR was in the nature of revenue deposit. Further, it is an admitted fact that such amount was reversibly deposited under protest.' There are no merits in the submissions made to the fact that the provisions of Section 27 could not apply to the case of refund of penalty and fines. The period of limitation shall not apply in the present case and refunds claim have to be adjudicated accordingly, treating that these amounts of redemption fine and penalties were paid under protest as per the direction of the department, for effecting the clearance of the goods though the order imposing the fine and penalty was challenged in appeal. Thus though it is held that the refund claim has to be processed under the provisions of Section 27 of the Customs Act, 1962, as this is a case of consequential refund of penalty and redemption fine, the same cannot be held to be barred by the limitation as provided in the said section. There are no merits in the impugned order - appeal allowed. - HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) APPEARANCE: For the Appellant : Shri Jatin Mahajan, Advocate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the appellant under protest was already vacated by the Hon ble Tribunal, and the protest does not continue to be operational after the final order of the Tribunal in their favour. However, the appellant claimed the refund only after the expiry of more than 20 months on 26.07.2019, which was not in conformity with the provisions of Section 27 of the Customs Act, 1962. Sub-section 1 (B) (b) of Section 27 clearly stated that where the duty becomes refundable as a consequence of any judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any Court, the limitation of one year shall be computed from the date of such judgment, decree, order or direction . 6. In this given factual situation, the protest, was already concluded vide order dated 10.11.2017 of the CESTAT, and the said amount has become refundable from that date. However, he appellant remained silent till 25.07.2019, and therefore, the provision of Sub-section 1 (B) (b) of Section 27 is squarely applicable and squarely attracted, which cannot have any other meaning in this instant proceeding. The statutory limitation is sacrosanct and it is to be implemented as it is vigorously. The Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2.3 Appellant challenged the said order rejecting their refund claim who has vide impugned order dismissed the appeals. 2.4 Aggrieved Appellant has filed the appeal. 3.1 I have heard Shri Jatin Mahajan, Advocate appearing for the Appellants and Shri Manish Raj, Authorized Representative appearing for the Revenue. 3.2 Arguing for the Appellant learned counsel submits that,- terms duty or interest used in Section 27 are not equivalent to word penalty and fine. thus the limitation as prescribed for claiming their refund of duty and interest could not be applicable to the present case. Reliance is placed on the decision in following cases:- Rajendra Mechanical Industries Ltd. [2005 (180) E.L.T. 183]. Abdulla Gani [2013 (298) E.L.T. 221]. Evershine Marbles Exporters P. Ltd. [2009 (245) E.L.T. 398]. There is no time limit prescribed under Section 27 for refund of final penalty. Reliance is placed on the decision in case of Cooper Pharma [2017 (357) E.L.T. 929 (Tri.-Del.)]. Undisputedly these amounts were paid under protest for the release of confiscated goods and the appeal has been allowed with consequential relief by the Tribunal. As this is a consequential refund as per the said ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y observed Accordingly the impugned order is set aside. The appellants are entitled for consequential relief, in accordance with law. It is a settled law that any amount which becomes due to the appellant consequent to an Appellate order the deposits should have been refunded to the appellant. In case of G S Radiators Ltd [2005 (179) ELT 222 (T)] following was held: 3. On a careful consideration of the submissions made by both the sides, I find that in this case the question of limitation will not apply as provided under Section 11B of the Central Excise Act as the amount paid by the appellants on the direction of the department was being contested by them from the adjudicating stage till they won the appeal before the Tribunal. Therefore, such payment will be considered as payment under protest. Tribunal under its Final Order had given direction to give consequential relief to the appellants which should have been given by the department. But instead of giving them refund, they rejected it on time-bar which is not correct. In view of the above, I find that payment made by the appellants has to be considered as payment under protest and the refund should be allowed to them if other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide by the Commissioner (Appeals) are required to be sanctioned, without applying the bar of limitation reckoned from date of deposit . 4.7 Board has vide Circular No. 984/8/2014-CX dated 16.09.2014 clarified as follows: 5.2 Pre-deposit for filing appeal is not payment of duty. Hence, refund of pre-deposit need not be subjected to the process of refund of duty under Section 11B of the Central Excise Act, 1944 or Section 27 of the Customs Act, 1962. Therefore, in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not. 4.8 In case of Abdulla Gani [2013 (298) E.L.T. 221 (Bom)], Hon ble Bombay High Court has held as follows: 9. Strictly speaking, Section 27A applies to a claim of refund of duty or interest and does not specifically refer to the payment of interest on a refund of penalty or on pre-deposit effected before the Appellate Tribunal or, for that matter, before the appellate authority. In Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it stood before the date on which the Finance Bill, 2011 receives the assent of the President and the same shall be dealt with in accordance with the provisions of sub-section (2): PROVIDED FURTHER that the limitation of one year shall not apply where any duty or interest has been paid under protest: [PROVIDED ALSO that where the amount of refund claimed is less than rupees one hundred, the same shall not be refunded.] Explanation : For the purposes of this sub-section, the date of payment of duty or interest in relation to a person, other than the importer, shall be construed as the date of purchase of goods by such person. (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. (1B) Save as otherwise provided in this section, the period of limitation of one year shall be computed in the following manner, namely:- (a) in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the Legislature intended to apply the law in a given case; whether the Legislature intended to exclude operation of law in a given case; whether Legislature intended to give discretion to enforcing authority or to adjudicating agency to apply the law, are essentially questions to which answers can be sought only by knowing the intention of the legislation. Apart from the general principles of interpretation of statutes, there are certain internal aids and external aids which are tools for interpreting the statutes. 17. The long title, the preamble, the heading, the marginal note, punctuation, illustrations, definitions or dictionary clause, a proviso to a section, explanation, examples, a schedule to the Act etc., are internal aids to construction. The external aids to construction are Parliamentary debates, history leading to the legislation, other statutes which have a bearing, dictionaries, thesaurus. 18. It is well accepted that a statute must be construed according to the intention of the Legislature and the Courts should act upon the true intention of the legislation while applying law and while interpreting law. If a statutory provision is open to more than one meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its remedy to which the enactment is directed... 19. The well-settled principle is that when the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. 20. In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation. This is especially so in fiscal statutes and penal statutes. Nevertheless, if the plain language results in absurdity, the Court is entitled to determine the meaning of the word in the context in which it is used keeping in view the legislative purpose [ Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade a distinction while interpreting a taxation statute on one hand and tax exemption notification on the other. In Black s Law Dictionary (10th Edn.) strict interpretation is described as under : Strict interpretation. (16c) 1. An interpretation according to the narrowest, most literal meaning of the words without regard for context and other permissible meanings. 2. An interpretation according to what the interpreter narrowly believes to have been the specific intentions or understandings of the text s authors or ratifiers, and no more. - Also termed (in senses 1 2) strict construction, literal interpretation; literal construction; restricted interpretation; interpretatio stricta; interpretatio restricta; interpretatio verbalis. 3. The philosophy underlying strict interpretation of statutes. - Also termed as close interpretation; interpretatio restrictive. See strict constructionism under constructionism. Cf. large interpretation; liberal interpretation (2). Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly within the letter of the statute, as well as within i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferences, then strict interpretation can be implied to accept some form of essential inferences which literal rule may not accept. 25. We are not suggesting that literal rule de hors the strict interpretation nor one should ignore to ascertain the interplay between strict interpretation and literal interpretation . We may reiterate at the cost of repetition that strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. Indeed, it is well-settled that in a taxation statute, there is no room for any intendment; that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification. Equity has no place in interpretation of a tax statute. Strictly one has to look to the language used; there is no room for searching intendment nor drawing any presumption. Furthermore, nothing has to be read into nor should anything be implied other than essential inferences while considering a taxation statute. 26. Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y impose the tax on him , [Russel v. Scott, (1948) 2 All ER 1]. The proper course in construing revenue Acts is to give a fair and reasonable construction to their language without leaning to one side or the other but keeping in mind that no tax can be imposed without words clearly showing an intention to lay the burden and that equitable construction of the words is not permissible [Ormond Investment Co. v. Betts, (1928) AC 143]. Considerations of hardship, injustice or anomalies do not play any useful role in construing taxing statutes unless there be some real ambiguity [ Mapp v. Oram, (1969) 3 All ER 215] . It has also been said that if taxing provision is so wanting in clarity that no meaning is reasonably clear, the Courts will be unable to regard it as of any effect [IRC v. Ross and Coutler, (1948) 1 All ER 616]. Further elaborating on this aspect, the Learned author stated as follows : Therefore, if the words used are ambiguous and reasonable open to two interpretations benefit of interpretation is given to the subject [ Express Mill v. Municipal Committee, Wardha, AIR 1958 SC 341]. If the Legislature fails to express itself clearly and the taxpayer escapes by not being bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Triveni Engineering Industries [2018 (363) ELLT 331 (T-All)] following has been held: 5. . The Learned Counsel also states that under such facts and circumstances, the revenue should have suo-motu refunded the amount paid by them on clearance of Bagasse under the provisions of Rule 6 (3) of CCR, 2004. Further, there is no question of any limitation being attracted. The Learned Counsel said that the courts below have erred in holding that limitation starts from the date of judgment in their appeal for earlier period, before the Tribunal being judgment dated 8-6-2012. 6. Heard the Learned AR for revenue, who have relied on the impugned order. 7. Having considered the rival contentions, I hold that under the fact and circumstances that Bagasse is not a dutiable item and not a manufacture item, as held by the Hon ble Supreme Court, there was no question of any reversal of duty under the provision of Rule 6 (3) of CCR, 2004. Under such facts and circumstances, I hold that the amount reversed by the appellant under Rule 6 (3) of CCR was in the nature of revenue deposit. Further, it is an admitted fact that such amount was reversibly deposited under protest. 4.13 In case of Ajudhia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11B of Central Excises and Salt Act and Section 27 of the Customs Act do constitute law within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder. Section 11B of the Central Excises and Salt Act and Section 27 of the Customs Act, both before and after the 1991 (Amendment) Act are constitutionally valid and have to be followe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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