2018 (3) TMI 721

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....US dated 14.09.2007 during June 2015 to October 2015. A Show Cause Notice was issued to them on 22.09.2016 proposing rejection of the part of the said refund claim amounting Rs. 12,19,989/- alleging barred by limitation of the time limit of one year from the date of payment of duty prescribed under the said Notification. On adjudication, the refund was rejected. Aggrieved by the said order, the appellants filed appeal before the Ld. Commissioner (Appeals) who, in turn, rejected their appeal. Hence the present appeal. 3. Ld. Advocate for the appellants submits that the refund claim was filed under Notification 102/2007-Cus. Dated 14.09.2007, after sale of the imported goods, therefore, the period of limitation prescribed under the said Noti....

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....vt. Ltd. (supra) observed as follows. "33. It is submitted that the Hon'ble High Court of Delhi has clearly opined and held that the provisions of the Customs Act on the rules and mechanism for refund are incorporated by reference in Section 3(5) of the CTA only "so far as may be" applicable. Since SADC is levied under Section 3(5) and that is refundable only on subsequent sale, then, no limitation period can possibly be imposed for advancing a refund claim. We have carefully perused the above observations and in the light of the analysis of the statutory provisions and the scheme of refund by us, with greatest respect, we are unable to agree with the High Court of Delhi on this point. The Rules and Regulations under the provisions of....

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.... when it comes to period of limitation therein, that is excessive or unfair, unjust and arbitrary. Once the exemption is conditional, then, all the conditions therein have to be complied with. If that provides for refund, but the application in that behalf is to be made within a specified period, then, that cannot be said to be excessive and arbitrary, far from being unfair, unjust and unreasonable. It cannot be termed illegal as well for the simple reason that subsection (1) of Section 27 of the Customs Act, 1962, which enables claiming of refund by making an application itself speaks of one year outer limit. That is never challenged, including in the present proceedings. That the period of one year commences from the payment of the duty. ....

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....the expiry of one year from the date of payment of additional duty of customs. 34. Mr. Patil would submit that the importer shall pay on sale of the said goods appropriate sales tax or value added tax, as the case may be, is equally a condition and further requirement is providing of copies of documents along with refund claim. Else, no refund is admissible. We are of the opinion that it is not possible to guess as to whether the refund application would be held to be nonmaintainable purely on the grounds or for the reasons suggested. If it is made within a period of one year from the date of payment of the additional duty of customs, then, because there is no subsequent sale and the documents evidencing that, as also proof of payment of ....