TaxTMI 
TaxTMI 
2018 (10) TMI 1572
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....Bill of entry No. Date of Bill of entry Amount of SAD paid Amount of refund claimed Amount of refund sanctioned Amount of refund rejected 1. 4355329 23.02.16 18,933.1 18,933 0 18,933 2. 4355329 23.02.16 19,124 19,124 0 19,124 Total 38,057.1 38,057 0 38,057 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 Order under challenge has held that upholding the limitation period starting from the date of payment of duty as prescribed in amended Notification No. 93/2008-Cus would amount to allowing commencement of limitation period for refund claimed before the right of refund has even accrued and that no period of limitation is prescribed under Section 3(5) of the Customs Tariff Act. Accordingly, the Appeal of asseesse was allowed accepting the refund claimed. Department being aggrieved is in Appeal before us. 3. We....
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....xplanation - 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 case may be, such charge." It is brought to our notice that the said SAD exemption has been granted vide Notification No. 102/2007 dated 14.09.2007 as issued in accordance of Section 25(1) of the Customs Act which provides power to the Central Government to grant exemption from duty by way of Notification. This Notification exempts the goods falling within the first schedule to the Customs Tariff Act, 1975 when imported into India for subsequent sale, from the whole of the additional duty of Customs leviable thereupon i....
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....missioner(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 31.05.2017, 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 duty or interest, paid by him or borne by him may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs before the expiry of one year from the date of payment of such duty or interest. 8. The words used in the provision makes it clear that statute has not distinguished the nature of duty or interest, the refund whereof is claimed. Hence, even if we do not look into the amended Notification No. 93/2008, the period of limitation as applica....
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....y 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 statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed. Apparently and admittedly none is the fact of the present Appeal. It is also not the case that Notification 93/2008 has been repealed. In absence thereof also, as already discussed above, Section 27 of Customs Act prescribes a period during which refund of any type can be claimed. The Hon'ble Apex Court in a recent decision Comm....