Commissioner of Customs (Exports), Chennai Vs. Jsw Steels Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1149627
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Chennai
Decided OnMar-19-2014
Case NumberAppeal No.C/S/224 of 2010 & C/322 of 2010 [Arising out of Order-in-Appeal No.C.Cus.No.387 of 2010 dt. 3.5.2010 passed by the Commissioner of Customs (Appeals), Chennai]
JudgeTHE HONOURABLE MR. P.K. DAS, JUDICIAL MEMBER & THE HONOURABLE MR. RAKESH KUMAR, TECHNICAL MEMBER
AppellantCommissioner of Customs (Exports), Chennai
RespondentJsw Steels Ltd.
Excerpt:
p.k. das, j. 1. after hearing both sides and on perusal of the records, we find that appeal itself may be taken up at the time of stay petition hearing. accordingly after disposing the stay application, the appeal is taken up for hearing. 2. the relevant facts of the case, in brief, are that the respondents paid customs duty on the steel products exported out of india on the shipping bill. as evident from the appeal of revenue that they paid duties on 26.6.08, 27.6.08, 9.7.08 and on 15.7.08 of fob price. subsequently, cbec vide circular no.18/2008-cus. dt. 10.11.2008 clarified the computation of export duty by taking fob price as cum-duty-price till 31/12/2008. accordingly, the respondents filed refund claim on 30.1.09 on the differential amount paid in excess as per board's circular. adjudicating authority rejected the refund claim of rs.1,61,96,066/- as time-barred. commissioner (appeals) allowed the appeal filed by the respondent. hence revenue filed this appeal before this tribunal. 3. the learned authorized representative on behalf of revenue reiterates the grounds of appeal. he submits that commissioner (appeals) proceeded on the basis of erroneous facts and law of the case. it is submitted that there is no second time payment of duty and therefore there is no mistake of law. it is observed by the commissioner (appeals) that refund was not filed under section 27 of the customs act and proceeded on the basis of general clauses act, 1897. the learned ar submits that any refund claim would be governed by section 27 of customs act and he relied upon the hon'ble supreme court in the case of mafatlal industries ltd. vs uoi 1997 (89) elt 247 (sc) and in the case of asst. collector of customs vs anam electrical manufacturing co. ltd. - 1997 (90) elt 260 (sc), cc ahmedabad vs vishal exports overseas ltd. - 2008 (232) elt 857 (tri.-ahmd). 4. on the other hand, learned advocate on behalf of respondent submits that commissioner (appeals) allowed the refund as there was no assessment of duty. it is submitted that shipping bill would indicate that there was no assessment of duty. it is submitted that section 27 is not applicable as there is no assessment and in such an event, general clause act would be applied. 5. after hearing both sides and on perusal of records, we find that commissioner (appeals) has proceeded on an erroneous facts in so far as the amount paid second time cannot be treated as duty or it may be as if that collection of duty second time was without any authority of law i.e. by mistake of law. both the sides admitted that there was no second time payment of duty. as the commissioner (appeals) proceeded on the basis of wrong facts and therefore the finding on non-applicability of section 27 of the customs act is not sustainable. in our considered view, the matter is required to be examined on facts and the applicability of section 27 of the act. in view of that, we set aside the impugned orders and matter is remanded back to the original authority to decide afresh after considering the facts and law of the case. he shall also consider the decision relied upon ld. ar and other decisions. we make it clear that all the issues are kept open. needless to say that the original authority shall give proper opportunity of hearing before the orders are passed in the matter. the appeal filed by the revenue is allowed by way of remand. stay application is disposed of.
Judgment:

P.K. Das, J.

1. After hearing both sides and on perusal of the records, we find that appeal itself may be taken up at the time of stay petition hearing. Accordingly after disposing the stay application, the appeal is taken up for hearing.

2. The relevant facts of the case, in brief, are that the respondents paid Customs duty on the steel products exported out of India on the Shipping Bill. As evident from the appeal of Revenue that they paid duties on 26.6.08, 27.6.08, 9.7.08 and on 15.7.08 of FOB price. Subsequently, CBEC vide Circular No.18/2008-Cus. dt. 10.11.2008 clarified the computation of export duty by taking FOB price as cum-duty-price till 31/12/2008. Accordingly, the respondents filed refund claim on 30.1.09 on the differential amount paid in excess as per Board's circular. Adjudicating authority rejected the refund claim of Rs.1,61,96,066/- as time-barred. Commissioner (Appeals) allowed the appeal filed by the respondent. Hence Revenue filed this appeal before this Tribunal.

3. The Learned Authorized Representative on behalf of Revenue reiterates the grounds of appeal. He submits that Commissioner (Appeals) proceeded on the basis of erroneous facts and law of the case. It is submitted that there is no second time payment of duty and therefore there is no mistake of law. It is observed by the Commissioner (Appeals) that refund was not filed under Section 27 of the Customs Act and proceeded on the basis of General Clauses Act, 1897. The learned AR submits that any refund claim would be governed by Section 27 of Customs Act and he relied upon the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. Vs UOI 1997 (89) ELT 247 (SC) and in the case of Asst. Collector of Customs Vs Anam Electrical Manufacturing Co. Ltd. - 1997 (90) ELT 260 (SC), CC Ahmedabad Vs Vishal Exports Overseas Ltd. - 2008 (232) ELT 857 (Tri.-Ahmd).

4. On the other hand, Learned Advocate on behalf of respondent submits that Commissioner (Appeals) allowed the refund as there was no assessment of duty. It is submitted that shipping bill would indicate that there was no assessment of duty. It is submitted that section 27 is not applicable as there is no assessment and in such an event, General Clause Act would be applied.

5. After hearing both sides and on perusal of records, we find that Commissioner (Appeals) has proceeded on an erroneous facts in so far as the amount paid second time cannot be treated as duty or it may be as if that collection of duty second time was without any authority of law i.e. by mistake of law. Both the sides admitted that there was no second time payment of duty. As the Commissioner (Appeals) proceeded on the basis of wrong facts and therefore the finding on non-applicability of Section 27 of the Customs Act is not sustainable. In our considered view, the matter is required to be examined on facts and the applicability of Section 27 of the Act. In view of that, we set aside the impugned orders and matter is remanded back to the original authority to decide afresh after considering the facts and law of the case. He shall also consider the decision relied upon Ld. AR and other decisions. We make it clear that all the issues are kept open. Needless to say that the original authority shall give proper opportunity of hearing before the orders are passed in the matter. The appeal filed by the Revenue is allowed by way of remand. Stay application is disposed of.