By TIOL News Service

AHMEDABAD, FEB 23, 2016: PETITIONER is a unit situated in Dahej Special Economic Zone and is engaged in manufacture of stone wool insulation products. According to the petitioner, the respondents collected a sum of Rs.18,66,985/- by way of countervailing duty, though it was not payable by the petitioner. The petitioner, therefore, made a refund claim before the concerned customs authority having jurisdiction over the unit.

The Assistant Commissioner of Customs, Surat has returned the refund application on the ground that he does not have authority to process the same. The said communication is challenged by the Petitioner before the High Court.

After hearing both sides, the High Court held:

+ The issue regarding who would be the correct authority to process refund claims with respect to units situated in SEZs has been brewing up since quite some time. The respondent authorities are unable to decide such applications on account of certain intradepartmental communications. The situation had come to a stage where for prolonged period, neither customs authorities nor the SEZ authorities would entertain such refund applications. A bunch of petitions came up before this Court, which group of matters came to be decided in case of Anita Exports Vs. Union of India, 2014-TIOL-2162-HC-AHM-CUS , in which it was held and observed “ It is declared that unless proper mechanism is framed under the SEZ laws and statutory provisions are enacted/amended, the Commissionerate of Customs would continue to hold the authority under section 27 of the Customs Act, 1962 to entertain refund claims of excess payment of customs duty, redemption fine or penalties as the case may be, adjudicated and collected by the Customs authority under the Customs Act, 1962, even with respect to units situated in SEZ areas.

+ Despite such legal position clarified by the High Court, once again the Assistant Commissioner of Customs, Surat refused to entertain the refund application of the petitioner on the ground that the judgement in Anita Exports case is not applicable to the facts. for multiple reasons, the approach of the Assistant Commissioner was incorrect. Firstly, in Anita Exports, there were bunch of petitions not having identical facts. It was only for convenience that we had referred to detailed facts in case of Anita Exports. Further, we do not see any material difference so far as the facts of Anita Exports and present case are concerned. The ratio of the decision was that for any customs duty collected, refund application would be maintainable under Section 27 of the Customs Act and such refund application would be maintainable before the specified authority of the customs. It was further held that without amending said statutory provisions, it was not possible for the Government of India to prevent the competent customs authority from entertaining and deciding such refund application. We do not see how such ratio becomes inapplicable in the present case.

+ The distinction, even if exists, has no relevance. As long as the duty in the nature of customs duty has been collected, the refund would be payable only in terms of Section 27 of the Customs Act. Since the statute also prescribes the authority competent to entertain such an application, refund applications would be maintainable before such authority. Unless there is amendment in law, the respondents cannot prevent the competent officer from exercising his statutory powers, in fact, duties.

Accordingly, the High Court quashed the communication by the Assistant Commissioner and directed the competent office of the Customs Commissionerate, Surat to decide the application.

(See 2016-TIOL-319-HC-AHM-CUS)