TaxTMI 
TaxTMI 
2016 (2) TMI 247
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....he Central Government under Section 25 (1) of the Act, the additional duty of customs, known as Special Additional Duty ('SAD'), under Section 3(5) of the Customs Tariff Act, 1975 was exempted if the goods imported were meant for subsequent sale. If the SAD was already paid, the notification allowed exemption by way of refund. Para 2 of the notification specified the following conditions that were required to be fulfilled for availing the exemption: "(a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said 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 cu....
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....ration in the invoice would be acceptable for the purpose of fulfilling the condition as mentioned in para 2(b) of the said notification, it is clarified that a stamp on the invoice (to state that no CENVAT Credit is admissible) should suffice for the purpose of para 2 (b) of the said notification." 5. It must be noticed straightway that there was no corresponding amendment made to the notification itself. In fact, what the circular stated was that refund of the SAD, which was liable to be made upon fulfilment of the conditions of Notification No. 102/2007-Customs, would not be in cash but re-credited to the relevant DEPB scrips which were used for making payment of the SAD. However, even this proposed system of re-crediting DEPB scrip was unable to be given effect to. The Director General of Foreign Trade ('DGFT') which issued the DEPB scrips apparently had no mechanism for re-crediting them through the electronic data interchange ('EDI') system. 6. This led to a further Circular No. 27/2010-Customs being issued on 13th August 2010, where, after noting the issuance of the earlier circulars, it was stated that "EDI, at present, does not have facility to register such re-credi....
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....October 2013, 22nd November 2013, 16th December 2013 and 21st December 2014. Each of the above refund applications was rejected by referring to both the Circulars No. 6/2008 and 18/2013 on the ground that payments were not made in cash, but by using the DEPB scrips, and therefore, the question of refund of SAD in cash did not arise. 11. This petition challenges the aforementioned circulars on the ground that they could not have amended Notification No. 102/2007-Customs, dated 14th September 2007 and that they are ultra vires the Act. The consequential relief is for quashing of the orders dated 16th May 2014 and 20th May 2014 rejecting the refund applications on the ground that the initial payment of SAD was made by the Petitioner utilising DEPB scrips. It is clarified by the Petitioner that to the extent the initial payment of SAD was made in cash, refund was allowed by the said orders. 12. In paras 4, 8 and 9 of the order dated 16th May 2014 rejecting the Petitioner's refund claims submitted on 22nd November 2013 it is noted that the Petitioner has satisfied all the conditions of Notification No. 102/2007-Customs. However, in the counter affidavit filed by the Respondent, it....
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.... (1) of the Act. An amendment through notification can possibly be brought about only by again exercising the powers under Section 25(1) of the Act. In this very context, it may be noticed that one instance of such amendment is the issuance of Notification No.93/2008-Customs, dated 1st August 2008 under Section 25(1) of the Act to bring about an amendment to Notification No. 102/2007-Customs to introduce a time limit within which claims for refund of the SAD should be made by importers. 16. Although it is sought to be projected that the circulars which are subject matter of the challenge in the present petitions were issued to streamline the procedure and to remove ambiguities, in fact what the circulars seek to amend is Notification No. 102/2007-Customs itself by introducing an additional condition for being entitled to refund, which condition does not find place in Notification No. 102/2007-Customs. This condition is to the effect that if the payment of the SAD has in the first place not been made in cash, but by using a DEPB scrip, then the importers concerned would not be entitled to refund of SAD in cash. It is not in dispute that there is no such restriction in Notificatio....