TaxTMI 
TaxTMI 
2021 (12) TMI 1191
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....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 claim refund of SAD' arises or crystallises ....
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....onal 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 provisions of the Customs Act or the rules, and mechanism for refund is incorporated by reference into the Customs Tariff Act only "sofar as may b....
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....mending 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 date from which the refund claim is to be reckoned. All that can be inferred from the term "so far as may be "would be that specific provisions relating to ....
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....d 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. How in the teeth of a clear provision in the exemption notification can the assessee/petitioners contend that the exemption notification is valid for everything else but when it comes t....
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....atil 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 within one year from the date of payment of the additional duty of customs. In such circumstances and when that stipulation is challenged, the view taken by the Hon'ble High Court of Delhi cannot b....