TaxTMI 
TaxTMI 
2022 (12) TMI 228
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....r refund of additional duty of Customs (SAD) paid through DEPB scrip/license? 3. The facts give rise to the filing of the instant appeal are stated as follows. The appellant filed refund claims on 04/02/2016 and 04/04/2016 for Rs.6,75,155/- and Rs.13,78,961/- respectively of SAD paid u/s. 3(5) of Customs Tariff Act, 1975 in terms of Notification no. 102/2007-CUS dated 14/09/2007 as amended by Notification No. 93/2008-CUS dated 01/08/2008. So far as SAD refund of Rs.6,75,155/- is concerned, out of this amount Rs.4,48,989/- was paid in cash whereas, the remaining amount of Rs.2,26,166/- was Debited from the relevant DEPB License. In second refund, claim out of the amount of Rs. 13,38,961/- an amount of Rs.8,94,587/- was paid in cash and th....
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.... duty credit scrip after 30/09/2013 such payment cannot be considered as proper payment of Custom Duty as time limit fixed for utilizing the credit of 4% SAD was only till 30/09/2013 and therefore the Authorities below have rightly rejected the refund claim. According to Learned Authorised Representative the public notice issued by DGFT is not just an executive instructions but Delegated Legislation which has the force of law. 6. I have heard rival submissions and gone through the case records including the submissions and case laws cited by respective sides. The Notification dated 14/09/2007 as amended by Notification dated 01/08/2008 nowhere denied the refund when the same was paid by debiting DEPB scripts. The said notification laid d....
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....und they would have to make payment of the SAD only in cash aid not by way of DEPB scrips, the petitioner's applications for refund of SAD, to the extent it was not paid in cash, was rightly rejected. Reliance is placed on the very circulars which have been challenged by the petitioner as ultra vires of the Act. It is in the above context the question arises whether the above circulars could have been issued restricting the entitlement of the importers and exporters to refund in terms of Notification No. 102/2007-Customs, without the said notification itself being amended. xxx xxx xxx 15. At the outset, the Court notes that Section 151A of the Act is for a very limited purpose of issuing of instructions to officers of customs fo....
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.... using a DEPB scrip, then the importers concerned would not be entitled to refund of SAD in cash. It is not in dispute that there is no such restriction in Notification No. 102/2007-Customs even as on date. 17. The question whether the device of circulars could be adopted for modifying a notification has come up for consideration before the Court earlier. In Sandur Micro Circuits Ltd. v. Commissioner of Central Excise, 2008 (8) TMI 3-SC = 2008 (229) E.L.T. 641 (S.C.), it was inter alia held that : "A Circular cannot take away the effect of notifications statutorily issued. In fact in certain cases it has been held that the Circular cannot whittle down the exemption notification and restrict the scope of the exemption notif....
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....t 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 of law thereby granting administrative relief beyond terms of the Relevant provisions of the statute, but the Central Government is not empowered to withdraw benefits or impose harsher or stricter conditions than those postulated by the statute. In later cases, circulars can supplant the law but not supplement the law." 20. Th....
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.... later than four weeks from today. The petitioner's entitlement to interest on the amount of refund will also be considered and granted in accordance with law within the same period of four weeks from today." While relying upon aforesaid decision of Hon'ble High Court, this Tribunal in the matter of M/s. Armstrong World Industries (India) Private Limited V/S. Commissioner of Customs Nhava Sheva-III; 2021 (11) TMI 912- CESTAT Mumbai, allowed the appeal of the importer and held that the order that has rejected the refund benefit to the appellants therein arising out of the Notification dated 14/09/2007 as amended, has no merits. Similarly Ahmedabad bench of the Tribunal in the matter of M/s. Surya Roshni Ltd v/s Commissioner of Customs, Ah....