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TMI Blog2024 (9) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... eof, the petitioner is entitled to the exemption from payment of custom duty on import of the machinery used for the World Bank Aided project. Certificate issued by the State of Gujarat is also clearly specifies that the machinery has been used by the project is it approved by the World bank and given to the petitioner for construction for the road. On perusal of the sections 149 of the Customs Act, the petitioner has obtained a certificate from the Government of Gujarat claiming duty benefit as per Notification No. 84/97 and the custom authorities therefore required to pass necessary reassessment of the bills granting exemption and therefore the custom duty paid under protest is liable to be refunded to the petitioner. In view of the above provision of the Act and more particularly clause (iii) of the Notification No. 84/97 coupled with the fact that the petitioner has also produced certificate issued by the Chartered Accountant that the petitioner has not passed on the benefit of custom duty to be paid under protest to anyone and therefore there is no unjust enrichment if the amount paid under protest is refunded to the petitioner. The respondent authorities are directed to reass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosing the details of the petitioner as a Contractor and the machinery was required to be imported by the petitioner. 2.4 While certificate was pending to be issued by the State of Gujarat, the imported goods arrived at the port. The petitioner therefore cleared the goods by paying custom duty under protest because if the goods were allowed to remain on the port, the petitioner would have to pay heavy container detention charges as well as well as ground rent charges. Accordingly, the goods were cleared on 19.10.2016 on payment of Custom duty under protest by the petitioner. 2.5 The petitioner thereafter requested the Government of Gujarat for issuance of the project authority certificate by issuing various reminders. The Government of Gujarat issued project authority certificate in respect of four imported machineries on 30.03.2017. 2.6 The petitioner therefore on the basis of the project authority certificate issued by the State of Gujarat, filed a refund application for the custom duty paid protest on 09.09.2017. The petitioner also obtained certificate of Chartered Accountant to the effect that the burden of duty paid under protest had not been passed by the petitioner to ..... 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Government of Gujarat and only because such certificate was issued belatedly, the petitioner cannot be denied exemption from payment of custom duty as per the Notification No. 84/97 dated 11.11.1997. 3.1 It was further submitted that the respondent-authority has not paid refund for more than three years though the petitioner is entitled for the same. 3.2 It was submitted that the petitioner has sent multiple reminders for issuance of the refund paid under protest by the petitioner as there is no unjust enrichment of the petitioner as per the certificate of Chartered Accountant annexed with the refund application as the petitioner has not passed on the benefit of custom duty to any other person. 3.3 Learned advocate Mr. Sheth in the alternative submitted that it is the duty of the Government of Gujarat to ensure that the petitioner immediately gets the refund which has been delayed because of the belated grant of certificate by the Government and the entire object of the custom duty exemption is to give incentive to projects of public interest and the projects which are approved for the World bank. 3.4 It was submitted that the petitioner has been made to suffer as petitioner was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chintan Dave and learned advocate Mr. Nikunt Raval appearing for the respective respondent authorities submitted that the petitioner has paid the custom duty under protest on the basis of the assessment of Bills of Entry and as per the standing order No. 27/2019 dated 24.12.2019 issued by the Commissioner of Customs based upon the judgement passed by the Apex Court in case of ITC Limited (Supra) the refund cannot be entertained without passing reassessment order on the Bills of Entry and only the remedy available is under sections 149 and 154 of the Act. It was submitted that the law declared by the Hon ble Supreme Court is binding upon the authorities and therefore the refund has rightly denied to the petitioner in absence of reassessment of the Bills of Entry granting benefit of exemption of the Notification No. 84/97. 4.1 It was further submitted that the petitioner as respondent authorities can reassess the bill whereas it is already assessed unless and until there is a provision for the same and in absence of any provision under the Act and absence of the reassessment of Bills of Entries the petitioner is not entitled to any refund. 5. Having heard learned advocate for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired for the execution of the said project and that the said project has duly been approved by the Government of India, or (b) imported for use in a project that has been approved by the Government of India and financed (whether by a loan or a grant) by an international organisation listed in the said Annexure, a certificate from an officer not below the rank of Deputy Secretary to the Government of India, in the Ministry of Finance (Department of Economic Affairs) that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India; (ii) in case the said goods are intended to be used in a project financed (whether by a loan or a grant) by the World Bank, the Asian Development Bank or any other international organisation other than those listed in the Annexure, and the said project has been approved by the Government of India, a certificate from the executive head of the Project Implementing Authority and countersigned by an officer not below the rank of a Joint Secretary to the Government of India, in the concerned Line Ministry in the Government of India, that the said goods are required for the execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be. 8. On perusal of the above provision, the petitioner has obtained a certificate from the Government of Gujarat claiming duty benefit as per Notification No. 84/97 and the custom authorities therefore required to pass necessary reassessment of the bills granting exemption and therefore the custom duty paid under protest is liable to be refunded to the petitioner. 9. In view of the above provision of the Act and more particularly clause (iii) of the Notification No. 84/97 coupled with the fact that the petitioner has also produced certificate issued by the Chartered Accountant that the petitioner has not passed on the benefit of custom duty to be paid under protest to anyone and therefore there is no unjust enrichment if the amount paid under protest is refunded to the petitioner. 10. Considering the above facts and relevant provisions of law, the respondent authorities are directed to reassess the Bills of Entry of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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