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of <h1>SAD refund claims under section 3(5) not subject to one-year limitation from N/N. 93/2008 payment date</h1> <h3>M/s. Ambey Sales Versus Commissioner of Customs, GRFL, Sahnewal, Ludhiana</h3> CESTAT Chandigarh held that the one-year limitation period for filing SAD refund claims under N/N. 93/2008 dated 01.08.2008 is not applicable. Following ... Time limit prescribed for filing refund claim of SAD paid by the importer - Applicability of N/N. 93/2008(Cus) dated 01.08.2008 which has been issued in terms of section 25(1) of the Customs Act, 1962 without selling the imported goods by the importer within one year of payment of SAD - whether the limitation of one year stipulated in the notification dated 01.08.2008 would be applicable in matters relating to refund claims of additional duty? - HELD THAT:- The provisions of the notification dated 14.09.2007 as amended on 01.08.2008 and the aforesaid provisions of the Tariff Act and the Customs Act were examined by the Delhi High Court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT]. It was held that since additional duty levied under section 3(5) of the Tariff Act is refundable only on a subsequent sale, no limitation can possibly be imposed for filing a refund claim from the date of payment of such additional duty. The High Court further observed that neither section 27 of the Customs Act nor the provisions of the amended notification dated 01.08.2008 can impose a limitation period and such limitation can only be introduced by legislation - the High Court concluded that the period of limitation contemplated under section 27 of the Customs Act would not be applicable to a refund made under the notification dated 01.08.2008, more particularly when the customs authority also understood that section 27(1) of the Customs Act would not be applicable. Under the notification dated 14.09.2007, it is imperative for the importer to satisfy the conditions enumerated therein. It would, therefore, be necessary to examine in each case whether the said conditions have been fulfilled. Thus, the limitation of one year period from the date of payment of additional duty contemplated in the amending notification dated 01.08.2008 cannot be examined dehors the conditions stipulated in the notification dated 14.09.2007. In CC, HYDERABAD – CUSTOMS VERSUS KHAZANA [2019 (4) TMI 492 - CESTAT HYDERABAD], a learned member of the Tribunal did not follow the decision of the Delhi High Court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] only for the reason that it dealt with a situation that existed prior to the issue of the notification dated 01.08.2008 that introduced the limit of one year. In HARIYANA INTERNATIONAL PVT LTD VERSUS COMMISSIONER OF CUSTOMS (IMPORT) MUMBAI [2019 (4) TMI 142 - CESTAT MUMBAI], the Division Bench of the Tribunal did not consider the judgment of the Delhi High Court in Sony India. In C.C. -NEW DELHI (ICD TKD) (IMPORT) VERSUS NAV BHARAT TRADING CORPORATION [2018 (12) TMI 1487 - CESTAT NEW DELHI], the Division Bench of the Tribunal relied upon section 27 of the Customs Act, which section was held to be inapplicable by the jurisdictional Delhi High Court in Sony India. In CC, HYDERABAD- CUSTOMS VERSUS SURYA TELECOM PVT LTD [2018 (7) TMI 192 - CESTAT HYDERABAD], the decision of the Bombay High Court in CMS Infosys System was relied upon. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that it would not be necessary for an importer to file a claim for refund of the additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs in view of the judgment of the Delhi High Court in Sony India. The limitation of one year for filing a claim for refund of additional duty of customs paid on import of goods from the date of payment of additional duty would, therefore, not be applicable. The time limit imposed upon an importer for filing a refund claim of additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of said additional duty of customs in terms of the notification dated 01.08.2008 would not be applicable in view of the judgment of the Delhi High Court in Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi. The papers may now be placed before the Division Bench of the Tribunal for deciding the appeal. Issues Involved:1. Applicability of the time limit for filing refund claims of Special Additional Duty (SAD) by importers. Summary:Issue 1: Applicability of One-Year Time Limit for Filing Refund Claims of SADFacts:The appellant imported PVC resins and paid customs duty, countervailing duty, and SAD u/s 3(5) of the Customs Tariff Act, 1975. The appellant sought a refund of the SAD paid, which was rejected by the Assistant Commissioner and upheld by the Commissioner (Appeals) on the grounds that the refund claim was filed beyond the one-year time limit stipulated in the notification dated 01.08.2008.Legal Background:The notification dated 14.09.2007, issued u/s 25(1) of the Customs Act, 1962, exempts goods imported for subsequent sale from the whole of the additional duty of customs, subject to certain conditions. This notification was amended on 01.08.2008 to include a one-year time limit for filing refund claims.Arguments:- The appellant relied on the Delhi High Court's decision in Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi [2014 (304) E.L.T. 660 (Del.)], which held that the one-year limitation period introduced by the notification dated 01.08.2008 cannot be applied retrospectively and is not applicable for prospective cases either.- The department relied on the Bombay High Court's decision in CMS Info System Ltd vs. Union of India [2017 (349) E.L.T. 236 (Bom)], which upheld the one-year limitation period.Tribunal's Analysis:- The Tribunal considered the provisions of section 3(8) of the Tariff Act and section 27 of the Customs Act, 1962, which deal with claims for refund of duty.- The Delhi High Court in Sony India held that no limitation period can be imposed for filing a refund claim for SAD, as the right to claim refund accrues only upon the subsequent sale of the imported goods, which is a market-driven event. The High Court concluded that the period of limitation under section 27 of the Customs Act would not apply to refund claims under the notification dated 01.08.2008.- The Tribunal noted that the Bombay High Court in CMS Info System did not consider the conditions set out in the notification dated 14.09.2007 and focused solely on the one-year limitation period.Conclusion:The Tribunal followed the Delhi High Court's decision in Sony India and held that the one-year time limit for filing refund claims of additional duty of customs paid on imported goods, as stipulated in the notification dated 01.08.2008, is not applicable. The reference was answered in favor of the appellant, stating that the limitation period would not apply.Order:'The time limit imposed upon an importer for filing a refund claim of additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of said additional duty of customs in terms of the notification dated 01.08.2008 would not be applicable in view of the judgment of the Delhi High Court in Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi [2014 (304) E.L.T. 660 (Del.)].'Next Steps:The papers were directed to be placed before the Division Bench of the Tribunal for deciding the appeal.
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