TaxTMI 
TaxTMI 
2018 (10) TMI 1484
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....No. D.O.A. UID No. B/E No. B/E dated TR-6 Dated Amount of SAD paid Amount of Refund Claimed 1. 3828/15 08.03.16 1283/16 6601363 30.08.14 04.09.14 27855 27855 2. 6672097 06.09.14 11.09.14 28388 28388 3. 6819067 19.09.14 23.09.14 28197 28197 4. 6908314 28.09.14 01.10.14 30233 30233 5. 6908313 28.09.14 30.09.14 29540 29540 6. 7265093 04.11.14 10.11.14 28681 28681 7. 7272408 05.11.14 13.11.14 29698 29698 Total 2,02,592 2,02,592 The Assistant Commissioner vide order No. 5230 dated 08.09.2016 has rejected the said claim on the ground that the same has been filed after the prescribed time limit of one year from the date of payment and as such is rejected as being barred by time. Being aggrieved, the assessee approached the first appellate authority, i.e. the Commissioner of Customs (Appeals). He, vide the Or....
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....ble under sub-section (1) or, as the case may be, sub-section (3) or not] such additional duty as would counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India, it may, by notification in the Official Gazette, direct that such imported article shall, in addition, be liable to an additional duty at a rate not exceeding four per cent of the value of the imported article as specified in that notification. Explanation - In this sub-section, the expression "sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India" means the sales tax, value added tax, local tax or other charges for the time being in force, which would be leviable on a like article if sold, purchased or transported in India or, if a like article is not so sold, purchased or transported, which would be leviable on the class or description of articles to which the imported article belongs and where such taxes, or, as the case may be, such charges are leviable at different rates the highest such tax or, as the....
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....roduct being in first schedule (under the exempted category) is imported. Resultantly, we are of the opinion that for claiming the refund of additional duty nothing else has to happen or to be done by the asseesse after the payment of said additional duty of Customs. To our opinion, this particular fact distinguishes the present case from the case of M/s Sony India Pvt. Ltd. (supra). 7. Also, the amending Notification No. 93/2008 is arising out of the statute, i.e. Section 25(2A) of the Customs Act, 1962 hence, the findings of the Commissioner(Appeals) that the amendment introducing one year from the date of payment of additional duty as a time to claim the refund thereof is without statutory amendment, is not sustainable rather is opined to be legally erroneous. Otherwise also, the said amendment came into force w.e.f. 01.08.2008 that too in accordance of another statutory provision, i.e. Section 25(4) of the Customs Act. The refund in question was filed on 08.03.2016, i.e. much beyond the amended Notification and also the Customs Act itself contains a provision about claim of refund of duty in Section 27 thereof which reads as follows:- (i) Any person claiming refund of any....
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....gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. Vs. Hawkesford in the following passage: (ER p. 495) ...... There are three classes of cases in which a liability may be established founded upon a statute. .... But there is a third class viz. where a liability not existing at common law is created by a statue which at the same time gives a special and particular remedy for enforcing it. .... The remedy provided by the statue must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statue must be adopted and adhered to." In still another case titled as Munshiram Vs. Municipal Committee Chheharta SSC page 88 para 23, the Hon'ble Apex Court held that when a Revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner and all other forums and modes of seeking said remedy are excluded. Except in the case where the stat....