S.S. Garg ORDER
S.S. Garg, Member (J)
1. The present appeal is directed against the impugned order passed by the Commissioner (Appeals) vide his Order dated 17.01.2014 vide which the Commissioner (Appeals) rejected the refund claim of the appellant being barred by time by upholding the Order-in-Original. Briefly the facts of the present case are that the appellant had imported Heavy Melting Steel Scrap falling under CTH 72044900 of Central Excise Tariff Act, 1985 under Bills of Entry No. 237352 and 237353 both dated 10.12.2008. The proper officer assessed the Bills of Entry correctly by applying the rate of duty of Additional Customs Duty @ 10% in terms of Notification No. 2/2008 CE : MANU/EXCT/0008/2008 dated 01.03.2008 as amended by Notification No. 58/2008 CE : MANU/EXCT/0091/2008 dated 07.12.2008. However the CHA while calculating the Additional Customs duty @ 14% as obtaining earlier, remitted the duty amount in excess of the amount of duty assessed by the proper officer. The appellant thus committed inadvertent mistake and paid excess amount of Rs. 1,74,478/- (Rupees One Lakh Seventy Four Thousand Four Hundred and Seventy Eight only) in respect of the above Bills of Entry. The Assistant Commissioner of Customs vide Order dated 16.06.2010 rejected the application for refund on the ground that the refund claim has been filed after the statutory period of six months stipulated under Section 27(1)(b) of the Customs Act, 1962 and as such the claims are time barred. Aggrieved by the said order appellant filed the appeal before the Commissioner (Appeals) and the Commissioner (Appeals) vide his Order dated 24.03.2014 rejected the refund claim as time barred by upholding the Order-in-Original. Aggrieved by the impugned order, the appellant has filed the present appeal.
2. Heard both the parties and perused the records.
3. The learned counsel for the appellant submitted that the excess amount has been paid due to clerical mistake and the same cannot be termed as duty and therefore the limitation period of six months provided under Section 27(1)(b) of the Customs Act, 1962 is not applicable. He further submitted that the amount paid by mistake cannot be termed as duty and the rule of time bar is not applicable. In support of his submission, he relied upon the following authorities:
a) CCE, Bangalore-III Vs. Motorola India Pvt. Ltd. 2006 (206) E.L.T. 90 (Kar.)
b) Motorola India Pvt. Ltd. Vs. CCE, Bangalore-III MANU/CB/0298/2005 : 2006 (193) E.L.T. 468 (Tri.-Bang.)
c) CCE (Appeals), Hyderabad Vs. R.M. Cylinders Pvt. Ltd. 2006 (198) E.L.T. 45 (Tri.-Bang.)
d) CC (Import), Mumbai Vs. Nicolas Piramal India Ltd. 2008 (225) E.L.T. 99 (Tri.-Mumbai)
e) Union of India Vs. ITC Ltd. MANU/SC/0327/1993 : 1993 (67) E.L.T. 3 (S.C.)
f) Kansai Nerolac Paints Ltd. Vs. CC (Imports), Mumbai MANU/CM/0157/2013 : 2014 (300) E.L.T. 255 (Tri.-Mum.)
4. On the other hand the learned AR submitted that the amount paid by the appellant was duty though it was in excess than what was required to be paid. She further submitted that the appellant filed refund claim under Section 27 of the Customs Act 1962 and therefore the time bar will be applicable as the refund is sought to be made under Section 27 of the Customs Act 1962. In support of her submission, she relied upon the following authorities:
a) Andrew Telecom (I) Pvt. Ltd. Vs. CCE, Goa MANU/MH/0634/2014 : 2014 (34) S.T.R. 562 (Bom.)
b) Sarita Handa Exports (P) Ltd. Vs. Union of India 2015 (321) E.L.T. A206 (S.C)
c) Sarita Handa Exports (P) Ltd. Vs. Union of India MANU/PH/4882/2010 : 2015 (321) E.L.T. 434 (P & H)
4.1. She also submitted that in the Sarita Handa Exports (P) Ltd. cited supra the Hon'ble High Court of Punjab & Haryana while relying on the judgment of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. and others Vs. Union of India and others MANU/SC/1203/1997 : (1997) 5 SCC 536 : 1997 (89) ELT 247 (S.C) held that the refund application beyond specified period under Section 11B of the Act could not be entertained and this decision of the Punjab & Haryana High Court was upheld by the Hon'ble Supreme Court and reported in 2015 (321) E.L.T. A206 (S.C). Similarly Hon'ble High Court of Bombay in the case of Andrew Telecom (I) Pvt. Ltd. cited supra has held that for claiming refund, period of limitation is applicable.
5. The judgments cited by the learned counsel for the appellant is not applicable in the facts and circumstances of the case more so when the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. and also in the case of Sarita Handa Exports has held that any refund application beyond period specified under Section 11B of the Central Excise Act could not be entertained unless the refund was as a consequence of declaration of a provision as unconstitutional. Therefore relying upon the decision of the Hon'ble Supreme Court, I hold that there is nothing wrong in the impugned order and the refund claim filed by the appellant is time-barred and therefore I dismiss the appeal of the appellant.
(Order pronounced in open court on 23.09.2016)
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