2021 (12) TMI 1191

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....ocedure for such refund is provided under Notification No. 102/2007-Cus. dated 14.09.2007. Subsequently, this notification was amended by subsequent Notification No. 93/2008-Cus dated 01.08.2008, which provided in Condition No. (C) that 'the importer shall file a claim for refund of the 'Special Additional Duty' (SAD) of customs, paid on the import of goods with the Jurisdictional Customs Officer, before the expiry of one year from the date of payment of the 'Special Additional Duty of Customs'. The Adjudicating Authority observed that the appellant had filed a refund claim on 24.05.2018 for refund of SAD of Rs. 6,48,476/-, which is in respect of eleven Bills of Entry and such claim have been filed beyond the period of one year from the date of deposit of SAD, as per the respective bills of entry. The refund claim was rejected on the ground of limitation, as the appellant -importer had failed to file refund claims within one year from the date of payment of Customs duty/ SAD. It was also observed as regards two Bills of Entry - the appellant submitted duplicate copy of Bills of Entry. 3. Being aggrieved, the appellant preferred appeal inter alia on the ground that the 'right to ....

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....f law, was kept open. ii) Purab Textile Pvt. Ltd., -2015 (330) ELT 414 (Tri. Mum.) iii) International Refrigeration Corpn.-2016 (332) ELT 824 (Tri. Del.) Same view was expressed in the case of Commissioner of Customs, New Delhi vs. S. R. Traders -2020 (12) TMI 503-CESTAT, New Delhi. Accordingly, he prays for allowing of the appeal with consequential benefits. 6. Learned Authorised Representative appearing for the Revenue relies on the impugned order. 7. Having considered the rival contentions, I find that the facts are not in dispute and admittedly, the appellant importer has filed refund claim after more than one year or may be by few days more from the date of payment of SAD. I find that the Hon'ble Delhi High Court judgement in Sony India (supra) is based on the following specific findings - (i) The exemption provided in the original notification issued in exercise of the power under Section 25 (1) of the Customs Act is conditional -upon subsequent sale, as can be seen from the conditions required to be fulfilled in order for an importer to avail the benefit of the exemption, under Notification No. 102/2007-Cus. (ii) The prov....

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....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, later through Notification No.93/2008-Customs, dated 1.8.2008, amending Para 2 (c) of the 2007 Notification. The net effect of these was that a one year period was insisted upon for refund applications. The period was calculable from the date of payment of duty (SAD): Dr. Pratap Singh & Anr. Vs. Director of Enforcement, foreign Exchange Regulation Act & Ors., 1985 (3) SCC 72 is an authority for the proposition that the use of the phrase, "so far as may be" in a later statute, with reference to provisions in an earlier statute, means that the provisions of the referred (earlier) statute are to be followed "to the extent possible". (iv) Section 27(1) of the Customs Act prescribes a time limit of "one year, from the date of payment of such duty or interest......". Section 27 (1B) lists out three contingencies when the one year limit applies with 'modified effect'. That provision has the effect of shifting the ....

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....lied, and this reveals that for the purposes of making an application seeking refund, its consideration, that Customs Act and its provisions are made applicable even to the Tariff Act and the duties mentioned thereunder. Therefore, a provision for drawback, refund and exemption from such duties can be made by relying on the Customs Act, 1962. The power to refund is to be found in Section 27 of the Customs Act, 1962, and that was always there. The amendment to the notification introducing a limitation for seeking refund was part of Section 27 with its condition of a limitation period was throughout on the statute book. That is the only provision enabling granting refund of any duty, is undisputed. The notification granting exemption and under consideration in the case, enables claiming a refund of duty (SAD), but the power to grant it is in the substantive law. Precisely, that is the case herein. Further, that there is an exemption granted and which is conditional. The exemption being conditional, it is not permissible to pick and choose convenient conditions of the exemption notifications and leave out those which to parties like the petitioners, appear to be onerous and excessive.....

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....tional duty of customs paid on the imported goods, before the expiry of one year from the date of payment of additional duty of customs". (iv) With reference to the submission of Mr. Patil that the importer shall pay on sale of the said goods appropriate sales tax or value added tax, as the case may be, is equally a condition and further, requirement is providing of copies of documents along with refund claim or else, no refund is admissible, the finding of the Hon'ble Delhi High Court is that it is not possible to guess as to whether the refund application would be held to be non-maintainable purely on the grounds, or for the reasons suggested. If it is made within a period of one year from the date of payment of additional duty of customs, then, because there is no subsequent sale and the documents evidencing that, as also proof of payment of the sales tax or local taxes are required to be produced, that their production is also mandated in a particular period and within a particular time limit, is not something which we are required to call upon and decide. The case before the High Court is a case of rejection of a refund application simply because it was not filed with....

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.... the mechanism applicable for refund, in the Customs Act, applied; not the period of limitation. The Customs authorities had never understood Section 27(1) as to mean that a one year period of limitation was applicable for SAD refund. (4) Section 27 was understood as not applying to SAD cases, even though it was in the statue book for many years. Yet, with the introduction of the circular and then the notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed with effect from 1.8.2008 (by notification) became applicable. 10. As the aforesaid findings have not been distinguished by the Hon'ble High Court of Bombay, I am following the decision of the Hon'ble High Court of Delhi and hold that the appellant is entitled to the refund, as their right to claim refund of duty in terms of the Notification has accrued only when the sale took place past import. The findings of the Hon'ble High Court clearly show understanding of the department with regard to clause of limitation, provided in the Notification. The condition of limitation was not a part of the original notification. It was only with the introduction of Circular ....