TaxTMI 
TaxTMI 
2018 (7) TMI 192
X X X X Extracts X X X X
X X X X Extracts X X X X
....s in this case is that the respondent herein had imported lithium ion battery pack on which they paid applicable customs duties including the special Additional Duty (SAD) @ 4% Ad valorem as applicable. In terms of Notification No.102/2007-CUS dated 14.09.2007 as amended by Notification No.93/2008-CUS dated 01.08.2008, importers who sell the goods after paying appropriate VAT are eligible to claim refund of this SAD paid at the time of import subject to the conditions mentioned in the notification. One of the conditions in the notification is that refund claim must be filed within one year of payment of duty. In this case, the appellant filed the refund claims after the period of one year and hence their claims were rejected vide Orders-in-....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... particular context. It is his submission that in that particular case, the Hon'ble High Court was seized of a case where the limitation of one year introduced in the Notification No.102/2007-CUS through subsequent Notification No.93/2008 was sought to be applied retrospectively. The specific question of law formulated by the Hon'ble Delhi High Court as recorded in the aforesaid judgment was as follows: "Can period of limitation for preferring refund claims specified in the amending Notification No.93/2008-CUS be made applicable with retrospective effect, in absence of a limitation period in the original Notification No.102/2007-CUS in respect of the goods imported prior to the issue of the amending notification?" 6. After exami....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nature of time bar or limitation, that cannot be held to be honoured excessive and therefore, ultra vires of Article 14 of the Constitution. While passing this Order, the Hon'ble High Court of Bombay had reckoned the judgment of the Hon'ble High Court of Delhi and had observed as follows: "Once the statutory scheme is understood in the proper perspective and as a whole, then, merely because the view taken by the Delhi High Court has not been interfered by the Hon'ble Supreme Court will not enable us to follow it. There, the discussion, with great respect, is short of all the above provisions." 8. Thus saying, the Hon'ble High Court of Bombay differed from the judgment of the Hon'ble High Court of Delhi. 9. At this stage, Lear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....imposes a limitation period. The question of law framed is therefore, answered in favour of the assessee and against the Revenue. The appeal accordingly succeeds and is allowed without any order as to costs." 10. Thus the Hon'ble High Court of Delhi had run down the amending notification to the extent it imposed a period of limitation for filing a refund claim. 11. On a specific query from the Bench, both Learned Departmental Representative and the Learned Counsel for the Respondent had said that there was no judgment on this issue from the jurisdictional High Court of Telangana & Andhra Pradesh, on this matter. 12. The Learned Departmental Representative sought to rely on the following case laws to buttress his case. (1) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... may also be decided accordingly. 16. I have considered the arguments on both sides and perused the records. There is no dispute on the facts of the case that the refund claim was filed after one year from the date of payment of duty and as such was not eligible to be sanctioned in terms of Notification No.102/2007-CUS as applicable during the relevant period. The Learned Commissioner (Appeals) had relied on the judgment of the Hon'ble High Court of Delhi in the case of Sony India Pvt Ltd, wrongly holding that this judgment reached finality as the Hon'ble Apex Court has dismissed the appeal of the Revenue thereon. In fact the Hon'ble Apex Court had clearly dismissed the petition on the grounds of time bar, leaving the question of law ope....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... creation of law, the Tribunal cannot go beyond the law itself. The validity of the Act, Rules, Regulations and Notifications cannot be questioned or modified by the Tribunal. Only the High Courts and Supreme Court which examine the constitutionality of the laws can do so. Unless the notification is amended or modified by a judicial pronouncement of the High Court having jurisdiction over this Bench or of the Supreme Court, the Tribunal is bound to follow the notification as it stands. In this case not only is there no judgment of the jurisdictional High Court but there are two conflicting judgments of two different High Courts. Under these circumstances, the proper course of action for me is to follow the notification as it stands as was d....