Delhi High Court
Aman Medical Products Ltd. vs Commissioner Of Customs, Delhi on 16 September, 2009
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.U.S. A.C. No.11/2008
September 16, 2009
AMAN MEDICAL PRODUCTS LTD. ...Appellant
Through: Ms. Pankhuri Shrivastava, Advocate
VERSUS
COMMISSIONER OF CUSTOMS, DELHI ....Respondent
Through: Mr. Mukesh Anand, Advocate with Mr.
R.C.S. Bhadoria and Mr. Sailesh Tiwari,
Advocate.
CORAM:
HON'BLE MR. JUSTICE A. K. SIKRI
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
%
VALMIKI J. MEHTA, J
1. The only issue which arises for consideration in this present appeal is
whether an assessee who is entitled for concessional rate of duty pays the higher
duty by inadvertence is not entitled to grant of refund of the excess duty paid
CUS.A.C. No.11/2008 Page 1
unless he had filed an appeal against the „order‟ by which he had deposited the
duty on filing of the bill of entry. In other words, the assessee contends that in
the present case no „order‟ has been passed because the assessee simply filed
the bill of entry and paid the customs duty in mistake without taking the benefit
of the notification No. 6/2002 dated 1.3.2002 due to ignorance. The Customs
Excise and Service Tax Appellate Tribunal (CESTAT) has passed an order
holding that „in pursuance to an order of assessment‟ necessarily implies that a
payment of duty must be pursuant to an assessment order before a refund in
appeal can be asked for under Section 27 of the Customs Act, 1962 (hereinafter
referred to as „the Act‟)
2. We have therefore admitted the appeal and framed the following
questions of law:
" Whether non-filing of appeal against the assessed Bill of Entry in
which there was no lis between the importer and the revenue at the time of
payment of duty will deprive the importer of his right to file refund claim under
section 27 of the Customs Act, 1962?"
3. Before we proceed to decide the issue, it would be necessary to reproduce
the relevant part of the relevant provision, namely, Section 27 of the Customs
Act, 1962 which is as under:
"27. Claim for refund of duty.- (1) Any person claiming
refund of any duty-
(i) paid by him in pursuance of an order of assessment; or
(ii) borne by him,
may make an application for refund of such [ duty and interest,
CUS.A.C. No.11/2008 Page 2
if any, paid on such duty] to the [Assistant Commissioner of
Customs or Deputy Commissioner of Customs]-
(a) in the case of any import made by any individual for
his personal use or by Government or by any educational,
research or charitable institution or hospital, before the expiry
of one year;
(b) in any other case, before the expiry of six months,
from the date of payment of [duty and interest, if any, paid on
such duty] [in such form and manner] as may be specified in the
regulations made in this behalf and the application 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 and interest, if any,
paid on such duty] in relation to which such refund is claimed
was collected from, or paid by, him and the incidence of such
[duty and interest, if any, paidon such duty] had not been passed
on by him to any other person:
Provided that where an application for refund has been made
before the commencement of the Central Excise and Customs
Laws (Amendment) Act, 1991, such application shall be
deemed with in accordance with the provisions of sub-section
(2)"
4. If therefore we refer to language of Section 27, it is more than clear that
the duty which is paid is not necessarily pursuant to an order of assessment but
can also be „borne by him‟. Clause (i) and (ii) of sub-section (1) of Section 27
are clearly in the alternative as the expression „or‟ is found in between clauses
(i) and (ii). The object of Section 27(i)(ii) is to cover those classes of case where
the duty is paid by a person without an order of assessment, i.e. in a case like
the present where the assessee pays the duty in ignorance of a notification
which allows him payment of concessional rate of duty merely after filing a Bill
of Entry. In fact, such a case is the present case in which there is no assessment
order for being challenged in the appeal which is passed under Section 27(1)(i)
CUS.A.C. No.11/2008 Page 3
of the Act because there is no contest or lis and hence no adversarial assessment
order.
5. The Tribunal has referred to the cases of CCE, Kanpur Vs. Flock (India)
Pvt. Ltd. [2000(120) ELT 285] and Priya Blue Industries Ltd. Vs.
Commissioner of Customs (Preventive) 2004 (172) ELT 145 (SC). In both
these cases, referred to by the Tribunal there was an assessment order which
was passed and consequently it was held that where an adjudicating authority
passed an order which is appealable and the party did not chose to exercise the
statutory right of appeal, it is not open to the party to question the correctness of
the order of the adjudicating authority subsequently by filing a claim for refund
on the ground that adjudicating authority had committed an error in passing his
order. These judgments will therefore not apply when there is no assessment
order on dispute/contest, like as is in the facts of the present case.
6. We, therefore, answer the question framed by holding that the refund
claim of the appellant was maintainable under Section 27 of the Customs Act
and the non-filing of the appeal against the assessed bill of entry does not
deprive the appellant to file its claim for refund under Section 27 of the
Customs Act, 1962 and which claim will fall under clause (ii) of sub section (1)
of Section 27.
7. We accordingly set aside the impugned order dated 3.4.2008 of the
CESTAT and uphold the order of the Commissioner of Customs Appeal dated
28.1.2005 and remand of the matter to the original authority viz Deputy
CUS.A.C. No.11/2008 Page 4
Commissioner of Customs (Refund) to examine the merits of the matter in
accordance with law after providing due opportunity to the appellant.
VALMIKI J.MEHTA, J
A.K. SIKRI, J
September 16 , 2009
Ne
CUS.A.C. No.11/2008 Page 5
