2018 (6) TMI 1374

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....43,555 41,901 4 C/20136/2018 May 2011 2,31,534 1,50,481 0 5 C/20137/2018 July 2011 3,97,910 3.91,351 0 6 C/20138/2018 August 2011 3,56,471 2,84,483 0 7 C/20139/2018 December 2012 3,52,096 1,00,014 27,688 8 C/20140/2018 April 2011 3,12,185 3,12,185 0 9 C/20141/2018 August 2010 3,16,551 2,21,308 81,409 10 C/20142/2018 May 2010 5,06,747 3,43,019 13,090 11 C/20143/2018 October 2010 5,64,472 5,64,472 0 12 C/20144/2018 December 2010 3,73,071 3,73,071 0 13 C/20145/2018 Jan. 2011 2,83,457 2.83,457 0 14 C/20146/2018 February 2011 1,87,785 1,87,785 0 15 C/20184/2018 July 2010 3,86,767 2,04,356 20,312 16 C/20186/2018 May June July 2009 3,27,605 3,41,410 3,23,556 1,24,170 1,18,002 1,03,666 0 17 C/20503/2018 June 2011 2,37,567 2,05,924 0 18 C/20279/2018 October & November 2012 6,67,113 1,37,142 13,321 19 C/20280/2018 August 2009 5,43,947 3,79,130 1,64,817 20 C/20205/2018 September 2009 5,67,473 ....

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....er submitted that the sanction of SAD refund by way of recredit to DEPB scrips after withdrawl of DEPB recredit / revalidation provision is not correct when all necessary documents for processing SAD refund claim was made available before withdrawl of DEPB recredit / revalidation provisions (before 30/09/2013) in terms of Circular No, 18/2013. He further submitted that the ratio of the law laid down in Enterprises International Ltd. Vs. CCE [2016 (342) ELT 57] is fully applicable in the present case wherein it is clearly held that the right given under an exemption notification cannot be taken way by issue of departmental circular. He further submitted that the Hon'ble High Court of Delhi in the case of Allen Diesels India Pvt Ltd. Vs. UOI [2016-TlOL-968-HC-DEL-CUS] has held that the circulars which are contrary to the provisions of law are null and void. It is further submitted that the ratio as laid down in Midland Plastics relied upon by the Commissioner(Appeals) while rejecting the refund is not applicable in the facts and circumstances of the case. The learned consultant further submitted that the ratio of the Delhi High Court in the case of Allen Diesels cited supra are f....

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.... or not. This issue has been considered by the Hon'ble High Court of Delhi in the case of Allen Diesels India Pvt. Ltd. (cited supra) and the Hon'ble High Court after considering all the submissions of both the parties has come to the conclusion that the circular issued by CBEC cannot impose any additional restriction for grant of refund under a notification and such circulars are ultra vires. Further Hon'ble High Court declared that the Circular No.6/2008, No.10/2012 and 18/2013 issued by the CBEC, insofar as they seek to deny importers and exporters the refund of the SAD paid by using DEPB scrip, are invalid. In this regard, it is pertinent to reproduce the relevant paras of the said judgment:- 15.At the outset, the Court notes that Section 151A of the Act is for a very limited purpose of issuing of instructions to officers of customs for the purpose of "uniformity in the classification of goods or with respect to the levy of duty thereon or for the implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to "any prohibition/restriction for import or export of goods. " The above provision does not en....

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.... the reduction of the selling price of the goods, then the Government notification grating the exemption should itself say so, For instance, notification GSR 1089 dated 29th April 1969 expressly stated that the benefit of the exemption was to be available only to those manufacturers who produce proof to the satisfaction of the Collector that such benefit has been passed on by them to whom they have sold the goods. Such a condition has to be a part of the exemption notification. For, the notification is "law, But, after enacting the law, such a condition cannot be imposed by administrative directions, guidelines or press note. These administrative acts cannot go contrary to the statutory notification". 19. Recently in Pioneer India Electronics (P) Ltd. u Union of India, 2014 (301) E.L.T. 59 (Del.) it was observed as under: "The word "exemption" as used in sub-section (1) to Section 25 can and should include extension or increase in time but cannot be stretched and expounded to include power of the Government to, by a circular, reduce the statutory time for a c/aim of refund stipulated under the principal enactment, i.e., the Customs Act, 1962 That would make the circular ultra....