IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.02.2025 CORAM THE HONOURABLE MR JUSTICE ABDUL QUDDHOSE W.P.No.32533 of 2023 M/s. Jain Resource Recycling Pvt.ltd., represented by its Managing Director, Shri.Kamlesh Jain, The Lattice, No.20, Weddels Road, 4th Floor, Kilpauk,Chennai - 600 010 ..Petitioner Vs.

1. The Deputy Director, Directorate of Revenue Intelligence, Regional Unit, 2nd Floor, Avalon Building, Above Indian Bank,B/J.H.S.D. Jain School, Piplod-Vesu, Piplod, Surat - 395 007

2. The Senior Intelligence Officer, Directorate of Revenue Intelligence, Regional Unit, 2nd Floor, Avalon Building, Above Indian Bank,B/J.H.S.D. Jain School, Piplod-Vesu, Piplod, Surat - 395 007

3. The Deputy Commissioner of Customs (Refunds)

Customs Division, Surat, Gujarat. ..Respondents Prayer : Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the impugned communication dated 26.09.2023 issued by the 1st respondent in F.No.DRI/AZU/ SRU/B/INV-10 (INT-05)/2023/818 and quash the same and further direct the respondents to refund an amount of Rs.40,00,000/- collected from the petitioner.

For Petitioner : Mr.Hari Radhakrishnan For Respondents : Mr.M.Santhanaraman, Senior Standing Counsel

O R D E R

This writ petiton has been filed challenging the impugned communication dated 26.09.2023 issued by the first respondent rejecting the petitioner's request for refund of customs duty claimed to have been paid by them pursuant to the investigation under protest.

2. Under the impugned order, the first repondent has rejected the petitioner's request on the ground that the first respondent office is not the proper office for filing and processing refund application. Under the impugned order, the petitioner has been directed to approach the 3^rd respondent and file an application for refund in the prescribed proforma under section 27 of the Customs Act, 1962. 3.

According to the petitioner, by total non-application of mind, the petitioner has been directed to file a refund application under section 27 of the Customs Act, 1962, as the petitioner contends that they never sought for refund but they had only sought for return of the amount paid by them under protest pursuant to an investigation.

4. According to the petitioner, a demand for payment of customs duty/penalty or any other amount under the Customs Act can be made by the respondents only through a show cause notice, however, till date, no show cause notice has been issued by the respondents. The petitioner claims that a sum of Rs.40,00,000/- was deposited with the respondents under protest pursuant to an investigation involving a cargo imported by them.

5. Learned counsel for the petitioner drew the attention of this Court to section 27 of the Customs Act and would submit that since section 27 of the Customs Act deals with refund of any duty or interest, the said provisions is not applicable to the case of the petitioner who had deposited a sum of Rs.40,00,000/- with the respondents under protest pursuant to an investigation conducted by them in respect of a cargo imported by the petitioner.

6. Learned counsel for the petitioner also drew the attention of this Court to the decisions rendered by various High Courts, more particularly, to a decision rendered by Delhi High Court in the case of Team HR Services Pvt.Ltd. vs. Union of India reported in (2020(38) G.S.T.L. 457(Del.) and would submit that the respondents as a State can recover and/or retain as tax only such amount which are assessed and found due as tax and which assessment has attained finality.

According to him, since there was no assessment in respect of the amount of Rs.40,00,000/- deposited by the petitioner with the respondent under protest, the question of treating the request of the petitioner for the return of the said money cannot be treated to be a refund application falling under section 27 of the Customs Act.

7. Learned Standing Counsel appearing for