TaxTMI 
TaxTMI 
2021 (10) TMI 342
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....DEL)? 2. Whether the Hon'ble Tribunal has committed a serious error in law by holding that the limitation period would commence from the date when the refund claim is made, even though it had deficiencies which were cured later, and whether the same is against the true purport and the legislative intent of the taxing statutes? 3. Whether 4% SAD paid through DEPB scrips can be refunded in cash or not? 3. The respondent-assessee, M/s Molex India Private Limited is engaged in the manufacture of electronic connectors, electronic connector harness and other IT products classified in Chapter 85 of the Central Excise Tariff Act, 1985 (for short, 'the Act of 1985'). The assessee had filed various claims seeking refund of 4% CVD Special Additional Duty (SAD) for the period from May 2009 to December 2012 paid through Duty Entitlement Pass Book (DEPB) scrips. The said claims were either (i) refunded through DEPB credit; or (ii) rejected on the ground that DEPB scrips cannot be re- credited as per the Board Circular No.18/13/Cus dated 29.4.2013 ; or (iii) rejected as time barred. 4. Being aggrieved by the rejection of the refund claims, the assessee preferred appeals before the Commissio....
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....tain circulars restricting the effect of statutory Notification No.102/2007. The effect of such circulars was considered by the Hon'ble High Court of Delhi in the case of Allen Diesels (supra) wherein the Hon'ble High Court declared that Circular Nos.6/08, 10/12 and 18/13 issued by Central Board of Excise and Customs are invalid, insofar as they seek to deny importers and exporters the refund of SAD amount paid by DEPB scrips. Therefore, rejection of the assesee's applications on such grounds was held to be bad in law. Learned counsel further submitted that the Tribunal has rightly followed the said judgment of the Hon'ble High Court of Delhi in the present set of appeals filed by the assessee challenging the rejection of refund claims of SAD claimed by it in terms of Notification No.102/2007. 8. It was further argued on behalf of the assessee that the period of limitation for preferring refund claims, specified in the amendment notification No.93/2008- Cus cannot be made applicable to the original notification No. 102/2007-Cus in respect of goods imported prior to the issue of the amendment notification. The assessee had filed the refund applications well within time. However, th....
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.... (i) document evidencing payment of the said additional duty; (ii) invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer on sale of such imported goods. 3. The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above, are fulfilled. This notification was amended by issuing Notification No.93/2008-Cus wherein sub-paragraph (c) in paragraph 2 was substituted as under "(c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs." 11. Yet another circular dated 28.4.2008 in No.6/2008-Cus was issued by the Government of India. The relevant paragraph 7.3 is extracted hereunder for ready reference: "7. Other miscellaneous issues: ... 7.3 On the issue that in case of 4% CVD having been paid through DEPB Scrip, whether refund could b paid by cash, it is clar....
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.... 59 [Delhi]), has held that the said circulars are invalid. 15. In the case of Sandur Micro Circuits Ltd., (supra), the Hon'ble Apex Court has held thus: "A Circular cannot take away the effect of Notifications statutorily issued. In fact in certain cases it has been held tat the Circular cannot whittle down the Exemption Notification and restrict the scope of the Exemption Notification or hit it down. In other words, it was held that by issuing a circular anew condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed." 16. In Pioneer India Electronics (supra), the Hon'ble High Court of Delhi has held thus: "The word "exemption" as used in sub-section (1) to Section 25 can and should include extension or increase in time but cannot be stretched and expounded to include power of the Government to, by a circular, reduce the statutory time for a claim of refund stipulated under the principal enactment, i.e., the Customs Act, 1962. That would make the circular ultra vires the statute and beyond the scope of the Act, Rules, etc. Circulars might depart from the strict tenure of the statutory provision and might mitigate rigours o....
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....y the Hon'ble High Court of Delhi in the case of Allen Diesels (supra). As such, no exception can be found with the Tribunal relying on the said ruling. Re: Substantial question of law No.2 20. The main ground for rejecting the refund claims of the assessee is that the DEPB Scheme had lapsed at the time of filing of refund applications after curing the defective applications by the assessee. At this juncture, it is apposite to refer to the judgment of the Hon'ble High Court of Delhi in the case of Sony India Pvt. ltd .v. Commissioner of Customs (2014 [304[ ELT 660 [DEL]). The Hon'ble High Court of Delhi referring to Notification No.102/2007-Cus, has observed that the benefit of this notification can be availed by the assessee only once after the sale of the imported goods is complete. Quoting Section 3 (8) of Customs Tariff Act, it has been held that the term "so far as may be" used in the Customs Tariff Act can be inferred to mean that specific provisions relating to the mechanism applicable for refund enumerated in the Customs Act, 1962 are applicable. No limitation period can possibly be imposed for advancing a refund claim since SAD levied under Section 3 (5) of the Customs T....