AVANTI FEEDS LTD. Vs. COMMISSIONER OF CUSTOMS, CHENNAI

JUDGEMENT

(1.) THIS appeal has been filed against the Order -in -Appeal No. C. Cus. 702/2004 dated 30 -9 -2004, passed by the Commissioner of Customs (Appeals), Chennai.

(2.) THE issue relates to rejection of refund claim on account of time -bar. The Original authority has stated that the refund claim was received in the Customs House on 25 -7 -2003 while duty was paid on 11 -6 -2002 as the refund application was not filed in the Customs House within six months. As per Section 27 of the Customs Act, the claim was rejected. The Commissioner (Appeals) in the impugned order upheld the Order -in -Original. The learned Advocate Shri B. Venugopal who appeared for the appellants urged that the refund actually relates to marine cess which was paid under a mistake of law. He said that when duty is collected unauthorisedly, there is no question of time -bar as Section 27 of the Customs Act would not be applicable. He relied on the various decision particularly Union of India v. ITC Ltd. [1993 (67) E.L.T. 3 (S.C.)] wherein it was held that the bar of limitation has provided in Section 11B of the Central Excises and Salt Act, is not applicable when duty is collected without authority of law.

(3.) HOWEVER the learned JDR contended that the refund cannot be granted because the original assessment was not challenged and by following ratio of Priya Blue Industries Ltd. case reported in 2004 (172) E.L.T. 145 (S.C.)], refund is not admissible. Moreover it has been held by the Honble Apex Court in case of Assistant Collector of Customs v. Anam Electrical Manufacturing Co. [1997 (90) E.L.T. 260 (S.C.)] that even in the case of illegal levy the time -bar would be applicable. He also relied on the decision of this Tribunal in the case of CCE, Hyderabad v. M/s. XL Telecom Ltd., Final Order No. 606/2006, dated 17th March, 2006 [2006 (206) E.L.T. 303 (T)] wherein the Tribunal relying on Anam Electrical Manufacturing Co. case (supra) has held that the refund application even in respect of illegal levy is required to be filed within the period of limitation prescribed under the Act.