AI Drafter 
TaxTMI 
TaxTMI 
2021 (3) TMI 964
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....laim did not indicate charging of sales tax, instead there was an endorsement in the sales invoices that 'sale of poultry feed supplement under Commodity Code - 705 of IV Schedule exempted from sales tax'. 4. As against the said Order-in-Original dated 08.3.2016, the appellant has been provided an appeal remedy before the Commissioner of Customs (Appeals), Chennai. The appellant did not exhaust such a remedy, but chose to file the said writ petition on the ground that the said appeal remedy was not an efficacious remedy as the order passed the respondent was contrary to the statutory provisions. 5. The appellant has also pressed into service several notifications in support of their claim. It is argued by the learned counsel for the appellant that though the appellant sought for an opportunity of personal hearing before the respondent by indicating in the relevant column in the application, no such opportunity was granted. The said writ petition was pending from 2017. In the meantime, an additional affidavit was filed by the appellant raising additional grounds stating that in an identical matter, the Hon'ble Division Bench of this Court in the case of Commissione....
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....ailability of an alternate remedy. The facts before us would show that the availability of alternate remedy is not an absolute bar especially when the legality of entitlement of the refund claim was accepted by the Department pursuant to the decision of the Delhi Tribunal in the case of Gazal Overseas and there have been instances where Writ Courts have been entertaining writ petitions and granting the relief of refund. Therefore, we would be well justified in entertaining this appeal and consequentially, the said writ petition. 11. Mr.A.P.Srinivas, learned Senior Standing Counsel appearing for the respondent submits that the refund claim was also rejected on the ground that it was beyond the period of limitation. 12. Per contra, the learned counsel for the appellant would submit that the said finding is incorrect because the out of charge order was granted only on 10.12.2014, after which, the goods were cleared and that if the said date is reckoned, then the application for refund was well within the period of limitation. 13. The learned counsel for the appellant would place reliance on the decision of the Hon'ble Division Bench of this Court in the case of HLG Tradin....
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....egislation, given the expropriatory consequences of such a limitation period. .... 14. The expression "so far as may be" in this context, under Section 27 is significant as well as instructive. The levy under CUSAA 3/2014 Page 9 Section 3 (5) is conditional upon the Central Government's opinion that it is necessary to "counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article.."; the rate of duty - where more than one levy exists, would be the highest of such rates and the terms of imposition of SADC would be spelt out in the notification. In this case, the regime existing before the notification of 2008 did not specify any period of limitation - and perhaps advisedly so. Some customs authorities apparently started applying Section 27, drawing inspiration from Section 3(8) which led to confusion. In Notification No.102/2007-Customs dated 14.09.2007 there was no period of limitation; by Circular No.6/2008-Customs, an amending notification providing for one year period from the date of payment of the additional duty of customs was issued, through Notification No.93/2008-Customs dated 1.8.2008, amending Pa....
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....nderstood Section 27(1) as to mean that a one year period of limitation was applicable. Audioplus (supra) and United Chemicals Industries (supra) are both testimony to this. It is the circulars/notifications of 2008 and No. 16/2009 which for the first time harped on the one year period of limitation. Circular No 6/2008 dated 28.4.2008 issued by the CBEC stated that: "4. Time-Limit: '4.1 In the Notification No. 102/2007- Customs, dated 14-9-2007, no specific time - limit has been prescribed for filing a refund application. Under the circumstances, a doubt has been expressed that whether the normal time-limit of six months prescribed in Section 27 of the Customs Act, would apply. In the absence of specific provision of Section 27 being made applicable in the said notification, the time-limit prescribed in this section would not be automatically applicable to refunds under the notification. Further, it was also represented that the goods imported may have to be dispatched for sale to different parts of the country and that the importer may find it difficult to dispose of the imported goods and complete the requisite documentation within the normal period of six m....