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TMI Blog2025 (2) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... as logistics, payment of duty on behalf of the importer as their agent, which charges are reimbursed by the importer on actual basis - The documents such as Bill of Entry for which the import duty has been assessed under the Customs statute and the challans in which the customs duty have been paid twice for the same amount and for the very same Bill of Entry are sufficiently evidence that the customs duty has been paid twice for one import. Further, the chartered accountant certificate dated 23.08.2019 produced by the importer -appellants also demonstrates that the burden of duty have been borne by them on being had to pay the customs duty twice, and they had not passed on such burden to any other person. On the above basis, a clear case has been made out by the appellants and the original authority had verified the facts, before grant of refund to the importer-appellants in this case. Therefore, the impugned order is contrary to the factual position of the case as discussed herein and on this ground alone it is liable to be set aside. The issue of refund arising on account of payment of duty/tax twice has been dealt with in detail by the by the Hon'ble High Court of Gujarat in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies pointed out, were submitted with all requisite details on 20.08.2019. The said refund claim was scrutinised by the proper officer for verification of facts regarding double payment of duty with all concerned sections of the Customs Commissionerate and with State Bank of India, International Air Cargo Complex, Sahar Branch for confirming the receipt of duty twice, chartered accountant's certificate for verification of unjust enrichment, and thereafter sanctioned refund of Rs. 10,25,253/- as payment of duty for same Bill of Entry for second time due to inadvertent error in the payment system. The Order-in-Original Order dated 04.09.2019 was reviewed and an appeal was filed by the department before the Commissioner of Customs (Appeals), who had set aside the original order and denied refund benefit to the appellants. Feeling aggrieved with the impugned Order dated 27.09.2021, the appellants have filed this appeal before the Tribunal. 3.1 Learned Advocate appearing for the appellant had submitted that they paid the customs duty twice, inadvertently due to technical glitch in the EDI system. Since the customs broker has been employed by them in clearance of goods including payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods imported into, or exported from, India. (2) The provisions of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government. Claim for refund of duty. Section 27. (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 Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest :......" Plain reading of the above legal provisions, make the position very clear that the scope of Section 27 ibid, deals with refund of duty and duty refers to the customs duty leviable as per the provisions of the Section 12 ibid.If such customs duty on import of goods provided is determined on the basis of Bill of Entry and ascerta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Thousand Two Hundred Fifty Three only) to M/s Varian Medical Systems International (India) Pvt. Ltd., having office at DHL Logistics Pvt. Ltd. K Square The Integrated Park, NH3 Mumbai Nashik Highway, Bhiwandi, Maharashtra, India for double payment of duty against the same Bill of Entry No. CBEX-IV_BOM_2017_2018_1903_10710 dated 19.03.2018 as detailed in Para 13 above." 8.2 I find from the above, that all the relevant issues relating to grant of refund has been examined by the original authority, to ascertain the fact whether the import duty has been twice on the very same consignment of imported goods. However, I find that the learned Commissioner (Appeals) had held that the appellant importer have neither paid impugned duty not they submitted any documentary evidence that the said duty, for which they are claiming refund has been borne by them. 8.3 Further, on careful perusal of the records of the case, it is amply clear that in respect of imports through courier mode, the importer has to file the Bill of Entry through authorised customs broker. Such customs broker besides providing assistance for clearance of goods from customs control, may also provide services such as log ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment. (i) Where a refund of tax/duty is claimed on the ground that it has been collected from the petitioner/plaintiff - whether before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991 or thereafter - by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified there under and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons. Firstly, we notice that under sub-section(3) of section 68, the time available to a service provider such as the petitioner for depositing with the Government service tax though not collected from the service recipient was 75 days from the end of the month when such service was provided. This is in contrast to the duty to be deposited by a service provider upon actual collection by the 15th of the month following the end of the month when such duty is collected. Sub-section (3) of section 68 thus provided for an outer limit of 75 days, but never provided that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Assessing Officer. (13) Further, to accept such formula adopted by the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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