Parimal Ray & Another Vs. the Commissioner of Customs (Port), Customs House & Others [2015 (2) TMI 826 – CALCUTTA HIGH COURT]
In the present case, a Thailand based Company, Italian Thai Development Public Company Limited and an Indian Public Company, ITD Cementation India Limited having its place of business in Salt Lake City, Kolkata decided to establish a Joint Venture Organisation – ITD-ITD CEM JV. This Joint Venture was unincorporated, represented by Parimal Ray and Another (“collectively along with Joint Venture Company referred to as ‘the Petitioner’).
The Kolkata Municipal Corporation invited tenders, in or about 2008 for its Drinking Water Supply Project. The Petitioner was successful in tendering and the Contract for the same was awarded to them. For the Contract awarded, the Petitioner imported the tunnel boring machines (“impugned goods”) vide Bills of Entry were dated December 15, 2009, December 21, 2009, May 31, 2010 and paid Custom duty of Rs. 3,60,45,561/-. Later on during September, 2012, the Petitioner came to know that they made their classification erroneously and as per the correct classification the impugned goods enjoyed 100% duty exemption as per the Exemption Notification issued under Section 25 of the Customs Act, 1962 (“the Customs Act”).
Accordingly, the Petitioner vide Application dated June 4, 2013 applied for refund of the entire amount of Rs. 3,60,45,561/- mistakenly paid by them. However, the Revenue denied refund to the Petitioner on the ground that refund had to be made within time limit prescribed under Section 27 of the Customs Act. Further, the Application made by the Petitioner cannot be taken as a proper Application for refund under Section 27 of the Customs Act. Being aggrieved, the Petitioner filed Writ Petition before the Hon’ble High Court of Calcutta contending that the time limit prescribed under Section 27 of the Customs Act cannot be made applicable to the amount of duty paid by mistake.
The Hon’ble High Court of Calcutta held as under:
Therefore, the Hon’ble High Court directed the Department to refund the said sum of Rs. 3,60,45,561/- to the Petitioner within 12 weeks of the communication of this Order.