2022 (11) TMI 1014

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....he present matter also obtained inter alia, in CUSAA No. 54/2021, titled Premier Timber Trading Pvt. Ltd. v. Principal Commissioner of Customs Import. 2.1 To recapitulate, the only issue which arises for consideration in this appeal concerns the application of limitation vis-à-vis refund sought qua Special Additional Duty (SAD). 3. In Premier Timber Trading case, we had set aside the impugned order passed by the Customs, Excise and Service Tax Appellate Tribunal [in short "Tribunal"] as also the order-in-appeal and order-in-original, based on the view taken by a coordinate bench of this court in Sony India Pvt. Ltd. v. Commissioner of Customs, New Delhi, 2014 (304) ELT 660 (Del.). 3.1 Besides this, we had observed that the v....

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....e [2016 (343) ELT 72(Del.)] and Siya Paper Mart Pvt. Ltd. cases refer to the Sony India decision. I find that the period involved in the Sony India case was from 01.12.2007 to 05.12.2007. In the instant case, the period involved is of 2016. It is to be noted that the Notification No. 102/2007Cus dated 14.09.2007 was amended by Notification No. 93/2008-Cus dated 01.08.2008 by which the condition of filing refund claim within one year was inserted In the principal Notification 102/2007. This has been amplified in para 5.3.1 above. Thus the judgment of Sony India and subsequent judgment based on it are not applicable to present case. 5.4.1 In fact, this aspect has been specifically dealt in the decision of the Hon'ble Bombay High ....

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.... period CUSAA 3/2014 Page 11 of limitation. The Customs authorities had never understood 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 ....

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....ough it was in the statute 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 01.08.2008 (by notification) became applicable. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. Khemka and Co. (Agencies) Private Ltd. v. State of Maharashtra, (1975) 35 STC 571 and other decisions are authority on the question that in matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactm....