Abhay Ahuja JUDGMENT
1. This Petition impugns the rejection of a refund claim of Rs. 38,90,832/-vide order dated 8 November 2019 passed by the Respondent no.3-Assistant Commissioner of Customs, Refund Section, ACC, Mumbai, as being time barred and not sustainable under Section 27 of the Customs Act, 1962, (the "Customs Act") and seeks a direction to the Respondent no.3 to refund the said amount to the Petitioner. Additional affidavit dated 6 August 2021 has also been filed by the Petitioner in support of the Petition.
2. The Petitioner, being a company incorporated under the Companies Act, 1956, engaged in the business of designing, manufacturing and distributing, importing various raw materials to manufacture and distribute exhaust after treatment systems. While importing the raw material, vide three bills of entry no.2297141, 2297232 and 2297331 respectively, Petitioner paid IGST of Rs. 38,90,832/-on 5 July 2017. Thereafter, Petitioner paid an amount of Rs. 42,08,551/-on 11 July 2017 in respect of the three bills of entry.
3. It is submitted on behalf of the Petitioner that, in 2019, while conducting an internal audit, the Chartered Accountant of the Petitioner viz. U.V.Bodas & Co. noticed the mistake that Petitioner had paid an excess customs duty of Rs. 38,90,832/-by making payment of Rs. 42,08,551/-on 11 July 2017 instead of a differential of Rs. 3,17,719/-.
4. Thereafter, Petitioner engaged with the Customs Department. By an email dated 10 July 2019 from the Icegate Service Manager addressed to Petitioner regarding pending confirmation of the payment made by the Petitioner, Petitioner was informed that Petitioner's issue had been resolved by rejection of the main challan due to less duty payment and the user could do the full payment of the same amount and take refund from the Custom location for the previously paid amount. The said communication is at page 116 which forms part of Petitioner's additional affidavit in support of the Writ Petition.
5. It is submitted that Petitioner was required to pay an additional IGST viz. differential duty of Rs. 3,17,719/-(R.42,08,551.00-Rs. 38,90,832.00) but instead of paying the differential amount, Petitioner paid Rs. 42,08,551/-on 11 July 2017 causing excess duty payment of Rs. 38,90,832/-.
6. On 30 July 2019 Petitioner filed an application claiming refund of customs duty paid in double/excess as per the prescribed format under Section 27 of the Customs Act, 1962, also declaring that the excess/double duty claimed as refund has not been passed on to any other person by the importer/buyer. The said declaration is usefully reproduced as under :
"Declaration
I/We CUMMINS TECHNOLOGIES INDIA PVT LTD hereby declare that-
(a) the contents of the refund claim as per form above are true and correct to the best of my/our information and belief;
(b) the amount and the ground for which this refund claim has been filed has not been previously claimed and paid; and that
(c) The excess/double duty claimed as refund has not been passed on to any other person by this importer/buyer.
Date-30.07.2019
For CUMMINS TECHNOLOGIES INDIA PVT LTD
Authorised Signature
(emphasis supplied)"
7. On 8 November 2019, Respondent no.3 rejected the claim of refund as time barred and not sustainable under Section 27 of the Customs Act, as the application was filed beyond a period of one year from the date of payment of duty. For the sake of convenience the said order of rejection is quot........