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Judgment
Refund in the present appeal arose by virtue of order passed by the Tribunal in Appeal No. C/971/89-A dated 13.6.1996. upon arise of such refund,
department has not entertained the refund claim. When that was not entertained, the appellant made refund claim on 1.8.2005 i.e. after 9 years of the
order of the Tribunal. That application was held to be time barred and refund was denied by the Commissioner (Appeals).
Appellant submits that once consequence of order of the Tribunal was to be given effect, Revenue should have acted voluntarily to grant refund.
There was no provision in the law to make application for refund in the year 1996. Only from 11.5.2007 fourth proviso was introduced to sub- section
(1) of section 27 of Customs Act, 1962 to prescribe limitation to entertain refund claim. Therefore, appellant cannot be deprived of refund.
Revenue on the other hand submits that application for refund is necessary and appellant should have filed application alongwith necessary
particulars within six months of the order of the Tribunal.
Heard both sides and also examined Fourth proviso to sub-section (1) of section 27 of Customs Act, 1962.
Prior to introduction of fourth proviso to sub-section (1) of section 27 of Customs Act, 1962 with effect from 11.5.2007, there was no limitation
prescribed for making refund claim. In absence of statutory provision, it is difficult to appreciate the contention of Revenue that appellant should have
made application for refund within six months from the date of receipt of the order from the Tribunal. It can be said that application is made before
2007 amendment and limitation provision cannot be considered to be retrospective in nature. Therefore, refund application needs to be considered in
the light of law in force before 11.5.2007 and subject to test of unjust enrichment, if any, applicable and subject to the satisfaction of evidence if any
on record entitling the appellant to refund. Refund claim shall be considered accordingly in a accordance with law Â
To carry out aforesaid direction, the matter is remanded back to the learned adjudicating authority to examine the evidence giving rise to refund
subject to bar of unjust enrichment, if any applicable.
(Dictated & pronounced in the open court)