Ericsson India Private Limited Vs Commissioner, Customs (CESTAT Delhi)
CESTAT held that amount paid for the same duty but twice, one of the payment has to be refunded. Otherwise also in terms of section 17 of Limitation Act, whenever there is an application for a relief from the consequences of a mistake, the period of limitation would not begin to run until the plaintiff or applicant has discovered the mistake, or could with reasonable diligence, have discovered it. Since from this angle also, the bar of limitation is held to have wrongly applied against the impugned refund application. The refund application was filed immediately after the mistake of making double payment with respect to same amount of duty was pointed out by appellants audit team. As already held above, the duty was for Bills of Entry which were provisionally assessed, the fact remains is that duty which was to be paid at the relevant time has been paid twice, I am of the opinion that remanding the matter back for reconsideration is not justified. More so for the reason that the Bill of Entry till date have not been finally assessed, whatever payment is already been made that too twice, one payment thereof cannot be called as duty and is definitely to be refunded to the appellant.
In view of these findings the order under challenge is held to be passed on irrelevant presumptions and wrong application of facts and even the legal provision. Commissioner (Appeals) is observed to have failed to follow judicial protocol as there has been enormous decisions of Hon’ble Apex Court, various Courts and of Tribunal holding that excess payment when made by mistake has to be refunded, Department has no authority to retain the same. The gist of Mafatlal Industries case also is that once it is established that more than what is payable under the statute has been paid by the tax-payer, the tax-payer automatically gets a right to get back the whole amount. The Authority without parity of law cannot be permitted to retain the amount because the appellant paying the double duty has committed a mistake.
FULL TEXT OF THE CESTAT DELHI ORDER
Present order disposes of two appeals both of them being arisen out of common Order-in-Appeal. The said Order-in-Appeal has been held that the refund claim was to be applied within the limitation period prescribed under law and since there were Bills of Entry which were still provisionally assessed, the limitation of those bills have to be counted after the final assessment; that the Commissioner (Appeals) has remanded the matter back with respect to the provisionally assessed bills for re-examination. Being aggrieved by this finding, the appellants are before this Tribunal.
2. The admitted facts relevant for the adjudication are that the appellant has paid the duty with respect to the Bills of Entry as detailed below:
C/52292/2021
Details of BoE and Payments
