2017 (5) TMI 1003 - AT - Customs

Tribunal remands case to determine if prior refund application filed, inquiry within limitation period

The Tribunal remanded the case to the original adjudicating authority to determine if the appellant had filed no prior refund application. If confirmed, ... Limitation period - refund of SAD - N/N. 102/07-Cus dated 14.9.07 - application for reund made within limitation period or not? - Held that: - unless there is application for refund of SAD, Revenue would not make general inquiry about the assessee's payment of VAT - Though, there is nothing in the said letter to connect inquiry with the refund application of appellant and inasmuch as there was no refund application prior to the present refund application, the appellants stand has to be appreciated and examined - the matter should be remanded to the original adjudicating authority for verifying the appellants stand that prior to 26.8.08, no refund application was filed by them - appeal allowed by way of remand. Issues:Refund claim of SAD under notification No. 102/07 - Cus dated 14.9.07, limitation period for filing refund claim.Analysis:The case involved a dispute regarding the refund claim of Special Additional Duty (SAD) under notification No. 102/07 - Cus dated 14.9.07, which permitted the refund if imported goods were sold on payment of VAT. The original adjudicating authority allowed a partial refund but rejected a portion due to being filed after the permissible one-year limitation period. The appellant argued that their refund application was filed on 26.8.2008, and the Revenue made inquiries with the VAT department regarding VAT payment confirmation, indicating possession of the refund application before the stated date, thus falling within the limitation period.The appellant contended that the Revenue's inquiry on 2.9.2008 should be considered as having possession of the refund application before that date, as the VAT department confirmed VAT payment on 23.9.2008. The Revenue, however, claimed that the correspondence with the VAT department was general and not specifically related to the refund claim. The appellant emphasized that the notification No. 102/07 dated 14.9.07 came into effect in September 2007, and their refund application on 26.8.2008 was the first and only application, rejecting the Revenue's assertion of a prior miscellaneous inquiry.The Tribunal acknowledged that the Revenue's letter to the VAT department on 02.9.08 sought clarification on VAT payment, which would not occur without a refund application. Although the letter did not explicitly link the inquiry to the appellant's refund application, the Tribunal agreed that if no prior application existed, the inquiry must be connected to the present case. Consequently, the matter was remanded to the original adjudicating authority to verify if the appellant indeed filed no prior application. If confirmed, the inquiry on 2.9.08 would be deemed related to the present application, falling within the limitation period, warranting a fresh decision by the authority based on the Tribunal's observations.