Case Law Details
Paras Marble Vs Union of India (Rajasthan High Court)
Petitioner had been bonafide pursuing his claim for refund of bank guarantee which was initially filed to the Commissioner Customs, Chennai within a period of one and a half months from the date of issuance of the EODC. The application was referred back to the petitioner almost after five months later vide letter dated 30.04.2019 conveying that the refund application had to be filed before another officer. The petitioner filed the refund claim application to the concerned officer albeit not in the prescribed format whereafter, it was again returned and was filed afresh in the prescribed format. Therefore, the finding of the respondents Authority that the application for refund was time- barred is totally unwarranted. The petitioner was unquestionably prosecuting his refund claim in a bonafide manner which ought not to have thrown away on hyper-technical objection of not having been filed before the competent authority and/or not having been filed in the prescribed format and finally as being delayed.
FULL TEXT OF THE JUDGMENT/ORDER OF RAJASTHAN HIGH COURT
The instant writ petition has been preferred by the petitioner M/s. Paras Marble for challenging the order (Annexure-10) dated 16.10.2020 passed by Deputy Commissioner of Customs (Refunds-II) and to direct the respondent No.3 to decide the petitioner’s refund application afresh by treating it to be within limitation.
Brief facts relevant and essential for disposal of the writ petition are noted herein below:-
The petitioner herein being a proprietory firm, had imported capital goods without payment of duty against EPCG licenece No.1330000397 dated 28.11.2003 for which a bank guarantee to the tune of Rs.4,84,000/- was submitted in favour of the Commissioner of Customs, Chennai. The bank guarantee was enforced by the Customs Department in the year 2011. The petitioner fulfilled the export obligation against the EPCG licence whereupon, the office of the Joint Director General of Foreign Trade, Jaipur issued an Export Obligation Discharge Certificate (‘EODC’) dated 10.10.2018 in favour of the petitioner. As per Section 26 of the Customs Act, 1962, a registered dealer is entitled to seek refund of the security amount once the EODC is issued and the time limit for filing the refund application is six months from the date of clearance of goods which as per the petitioner is 10.10.2018 in the case at hand.
Having acquired the EODC, the petitioner applied for the refund of the amount of the bank guarantee vide letter dated 24.11.2018. However, it seems that the application was inadvertently addressed to the Commissioner, Customs and should have been filed before the Assistant/Deputy Commissioner of Customs which is the proper officer to grant refunds under Section 27 of the Customs Act.
A letter dated 30.04.2019 was issued from the office of the Commissioner Customs and the petitioner was informed to approach the Assistant Commissioner (Refunds), Refund Section, Commissionerate-IV, Customs House, Chennai for claiming the refund. Thereupon, the petitioner submitted a fresh refund application along with all relevant documents vide letter dated 20.05.2019 to the Assistant Commissioner (Refunds). The petitioner has claimed that pursuant to submission of the said application to the proper officer, various reminders were issued but the refund application of the petitioner was not considered.
A letter dated 03.08.2020 was issued by the Assistant Commissioner informing the petitioner that its refund application could not be processed because the same had not been filed in the prescribed format and accordingly the application was being returned to the petitioner. The petitioner filed a fresh application to the Assistant Commissioner (Refunds) in the prescribed form No.102 as per the Custom Refund Application (Form) Regulations, 1995 on 04.09.2020. The Refund Authority rejected the petitioner’s refund claim by order (Annexure-10) dated 16.10.2020 observing that the same was time-barred whereupon, the petitioner has approached this Court through this writ petition for assailing the impugned order dated 16.10.2020 and to direct the respondents to treat the petitioner’s application for refund to be within limitation and to decide the same as per law.
A brief reply has been filed by the respondents wherein, a submission is made that the application dated 04.09.2020 submitted by the petitioner was received in the Office of the respondent after a delay of five months and thus, the same was rightly rejected as being time-barred.
Having considered the submissions advanced by Shri Jaideep Singh Saluja, learned counsel representing the petitioner, Shri Mukesh Rajpurohit, learned ASG and Shri Rajvendra Saraswat, learned counsel representing the respondents, we are of the firm view that the Respondent No.3 Refund authority acted in an absolutely hyper-technical, unjustified and arbitrary manner while rejecting the application submitted by the petitioner on the ground of delay.
The bank guarantee submitted by the petitioner as a security against payment of import duty was encashed by the respondent authority in the year 2011. The petitioner’s export clearance was approved by the concerned department of Government of India vide letter dated 10.10.2018 (Annexure-1). By this letter, the concerned officer intimated that the export obligation of the petitioner had been fulfilled and thus, the bank guarantee executed towards the transaction in question, stood redeemed. The petitioner immediately filed the application for refund to the Commissioner of Customs, Chennai vide letter dated 24.11.2018. The said application was sent back to the petitioner vide almost five months later i.e. on 30.04.2019 with the information that the same should be filed to the Assistant Commissioner (Refunds), Refund Section, Commissionerate-IV, Custom House, Chennai. The petitioner thereupon, filed the application (Annexure-4) dated 20.05.2019 to the competent authority as per the instructions given in the letter dated 30.04.2019. No response was given to the said application upon which reminders were issued and the petitioner was again apprised vide letter dated 04.09.2020 to file the application in Customs Series Form No.102. The petitioner made compliance and submitted the fresh application in the appropriate format which has been rejected vide letter (Annexure- 10) dated 16.10.2020 holding the same to be time-barred.
Having considered the admitted facts narrated above, we are of the firm view that the petitioner had been bonafide pursuing his claim for refund of bank guarantee which was initially filed to the Commissioner Customs, Chennai within a period of one and a half months from the date of issuance of the EODC. The application was referred back to the petitioner almost after five months later vide letter dated 30.04.2019 conveying that the refund application had to be filed before another officer. The petitioner filed the refund claim application to the concerned officer albeit not in the prescribed format whereafter, it was again returned and was filed afresh in the prescribed format. Therefore, the finding of the respondents Authority that the application for refund was time- barred is totally unwarranted. The petitioner was unquestionably prosecuting his refund claim in a bonafide manner which ought not to have thrown away on hyper-technical objection of not having been filed before the competent authority and/or not having been filed in the prescribed format and finally as being delayed.
Thus, the impugned communication (Annexure-10) dated 16.10.2020 is hereby quashed. The concerned authority shall treat the refund application of the petitioner to be within limitation and shall proceed to decide the same as per law within a period of three months from today.
The writ petition is allowed in these terms. No order as to costs.
