TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 765
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....Learned counsel appearing on behalf of the appellant submits that at the time of payment of SAD the assessment was provisional i.e. on 29.8.2013 thereafter, the Bill of entry was finally assessed on 7.1.17 and they have paid the differential SAD of Rs. 23,901.10/- on 7.1.17 and thereafter, the refund claim was filed for the entire duty that is the provisional SAD paid on 29.8.13 as well as the differential SAD paid on 7.1.17. He submits that this issue is squarely covered by the judgment of Hon'ble Delhi High Court in the case of PIONEER INDIA ELECTRONICS (P) LTD. V/s. UOI- 2014 (301) ELT 59 (Del.) wherein the identical facts were involved. He submits that in the said judgment, the Hon'ble Delhi High Court also quashed the boards circular N....
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....he present case the facts is not under dispute that the assessee though paid SAD on 18.1.17 but this payment is under the provisional assessment of "Bill of Entry". Admittedly the same bill of entry have been finalized on 07.01.17 when the appellant has paid the differential amount of SAD therefore, even though the payment was made on 29.8.13 even the said payment has been finalized with the final assessment of Bill of Entry. Therefore, the date of finalisation of payment should be from the date of finalisation of Bill of Entry i.e. 07.1.17. If this is so, then one year period will start from date of finalization of Bill of Entry which in the present case is 07.1.17. The refund claim was filed on 18.1.17 which is within one year from the da....
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..... As per the final adjudication, refund may not be payable, or quantum thereof may increase or decrease. 37. Circular No. 23 of 2010/Custom issued on 7th September, 2010 (sic) stipulates that the date of payment of provisional duty and not the date of final adjudication is determinative for computing the limitation period of refund under Notification No. 93 of 2008 issued on 1st August, 2008, can be faulted for many reasons. These are as under :i. As per Section 25(1), Central Government is empowered to issue a notification granting exemption i.e. grant exemption generally or absolutely or subject to conditions from whole or any part of custom duty leviable on goods. A notification cannot restrict the benefit or impose more rigorous or se....
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....however, stipulates that the claim for refund would be entertained under the notification dated 1st August, 2008, if it is made within one year from payment of duty and not final assessment. This may result in reducing the period. Assuming that the issue of date of payment was debatable, the Board did not deem it appropriate to fix a period or time limit during which claims of refund should be entertained in cases where the Assessee bonafidely believed and were acting on the presumption that period of one year was to be computed from the date of final assessment. The said belief was not ill founded but based on sound logic and reasoning. The Board while issuing the circular would have been fair and just and fixed a time limit during which p....
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.... whether it is provisional assessment or final assessment. However, the Hon'ble High Court dealing with the very same circular since concluded that one year should be counted from the date of the final assessment, the said circular was held ultravires and quashed. 4. As regard the judgments cited by the learned authorized representative, I find that the facts in those cases are entirely different from the facts of the present case. As in the present case facts is bill of entry has been initially provisionally assessed and part payment of duty was made and then subsequently at the time of final assessment the remaining differential duty was paid. Whereas, in the cases cited by the learned authorized representative there is no issue of provi....