TaxTMI 
TaxTMI 
2023 (1) TMI 395
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....ale SAD Paid @4% Date of filing SAD Refund Claimed Rs. 1 7057836 dt 13.10.16 2016292474 Dt. 15.10.2016 26.11.16 282030.10 22.02.2018 282030.10 2 7202544dt. 24.10.16 2016412396 Dt. 26.10.2016 05.12.16 149744.30 22.02.2018 149744.30 3 7202547 dt 24.10.16 2016412391 Dt. 26.10.2016 08.12.16 195097.70 22.02.2018 195097.70 4 7202549 dt 24.10.16 2016412394 Dt. 26.10.2016 08.12.16 192631.50 22.02.2018 192631.50 5 7832597 dt 15.12.16 2016892118 Dt. 16.12.2016 27.12.16 496514.60 22.02.2018 496514.60 6 8123757 dt 09.01.17 2017112137 Dt. 11.10.2017 17.01.17 688131.20 22.02.2018 688131.20 7 8191118 dt 16.01.17 2017160035 Dt. 16.01.2017 18.03.17 839226.10 22.02.2018 839226.10 TOTAL 2843375.50 28,43,375.50 2.2 Subsequently the documents of the appellant on 10.03.2017 and were returned to them on 11.01.2018. After the receipt of the seized documents appellant had filed these refund ....
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....venue, learned AR submits that the refund claims have been rightly rejected by the lower authorities as the same were filed beyond the statutory time limit of one year prescribed by Section 27 of the Customs Act, 1962. Accordingly the impugned order cannot be faulted with. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 For rejecting the appeal, Commissioner (Appeals) has in his order observed as follows:- "9. I find that in the instant case, the refund claim has been filed after a lapse of more than one year. I find that condition 2(c) freezes the entitlement of refund and no refund application can be filed after the period of 1 year. It is a settled law that once a pre-condition is set out in a notification, it has to be observed in full of its validity. Further, the time limit for filing a refund /rebate claim is prescribed under See 27 of the Customs Act, 1962 which read as under: "Section 27. Claim for refund of duty-[(1) Any person claiming refund of any duty or interest- (a) paid by him; or (b) borne by him, may make an applica....
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...., local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India, may by notification in the Official Gazette, direct that such imported article shall, in addition, be liable to an additional duty at a rate not exceeding four percent of the value of the imported article as specified in that notification." 13. In the view of the above, I find that the appellant could have filed claim for refund within one year. The reason stated by appellant that the officers of M&P Wing, Customs 1 (Prev.) had seized the Bs/E actually defeats the reason for delay. The appellant had imported the impugned goods vide seven Bs/E where 4 Bs/e pertain to the period October 2016, one of December 2016 and two of January 2017. The final sale of these goods were made in 2016 itself, barring two Bs/E of which the sale was effected in January 2017 and March 2017.. The Bs/e were seized by the officers on 06/07.3.2017. Thus, the appellant had more than one opportunity to file refund of SAD effected much before the date of seizure. Further, I find that the appellant could also have filed the claim based on the book of accounts well withi....
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....f receipt of documents from department 11.1.18 4. Date of filing of refund claim 22.2.18 5. Date of deficiency memo 9.3.18 6. Date of reply to deficiency memo 20.3.18 4.4 Section 27 of the Customs Act, 1962 reads as follows:- "Section 27. Claim for refund of duty- (1) Any person claiming refund of any duty or interest- (a) paid by him; or (b) borne by him, may make an application in such form and manner as may be prescribed for such refund to the Asstt. Commissioner of Customs or Dy. Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest. Provided that ..... : Provided further ..... : Provided also ...... Explanation. - ....... (1A) The application under sub-section (1) shall be accompanied by such documentary or other evidence (including the documents referred to in section 28C) as the applicant may furnish to establish that the amount of duty or interest in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty or interest, has not been passed on....
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.... issued an acknowledgement by the Proper Officer in the prescribed Form appended to these regulations within ten working days of the receipt of the application. (3) Where on scrutiny, however, the application is found to be incomplete, the Proper Officer shall, within ten working days of its receipt, return the application to the applicant, pointing out the deficiencies. The applicant may resubmit the application after making good the deficiencies, for scrutiny. Explanation . - For the purposes of payment of interest under section 27A of the Act, the application shall be deemed to have been received on the date on which a complete application, as acknowledged by the Proper Officer, has been made. Custom Manual, 2018 issued by Central Board of Indirect Taxes Chapter 14 - Refund at para 7 reads as follows: "7. Expeditious disposal of refund applications: 7.1 The procedure to ensure expeditious disposal of Customs duty refund applications and to enhance transparency in refund disbursement is as follows: (a) Receipt and acknowledgement of all refund applications: All refund applications made under Section 27 ....
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....ance as flowing from the legislative scheme is one and one only viz., an assessee cannot be penalized, where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department. The legislative scheme does not provide for any other exception or mitigating factor and there can be no other circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation. Then, this would be delay occasioned owing to such reason and circumstance, which is beyond control of the claimant. Paras 20, 21 and 22 of the judgment read as under :- "20. Thus, considering the matter from any angle it becomes apparent that the interpretation placed by Revenue on provisions of section 11B of the Act read with paragraph No. 2.4 of the CBEC Manual cannot be accepted the same being contrary to the object and purpose of the scheme. It cannot be held that the petitioner was at fault in making the claim belatedly, because in fact the period of limitation has to be considered in light of availability of the requisite documents, i.e., from the said point of time. 21. The view adop....
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....l Excises and Salt Rules, 1944, prior to its amendment on 6-10-88, and Rule 57-I of the Rules is not in any manner subject to Section 11A of the Act. It was therefore held that the Rule will act independently. Since notification issued under Rule 18 did not prescribe time limit, it was held that Section 11A of the Act, which provides six months time for claiming rebate, would not be applicable to deny rebate claim of the petitioner. 14. The Madras High Court in Dy. Commissioner of C. Ex., Chennai v. Dorcas Market Makers Pvt. Ltd., supra, has also taken a similar view with regard to Notification No. 19/2004-C.E., dated 6-9-2004, which superseded the previous Notification No. 41/94-C.E. that it did not contain the prescription regarding limitation, and held that a conscious decision taken by Central Government dismissing application for refund as time barred is unjustified. In Exclusive steels Pvt. Ltd. v. Union of India, supra, also, a Division Bench of Gujarat High Court held that the only circumstance under which a claimant would be entitled to prefer a claim beyond the statutorily prescribed period of limitation would be where the lapse as to non-availability....
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....rebate claim deficient in any manner to be admitted when delay in providing document is attributable to the Department. Where the lapse as to non-availability of requisite document is on account of Central Excise Department or Customs Department, this would be mitigating circumstance flowing from the aforesaid legislative scheme. Limitation is to be considered in the light of availability of requisite documents and should be taken to begin when documents necessary for substantiating the claim of refund are furnished by the department, which, in our considered view, should be the starting point for computation of limitation." In the case of Kaamdaa Impex [2021 (377) ELT 21 (Mad.)], Hon'ble Madras High Court has held as follows:- "15. The petitioners plead "Lex non-cogit ad impossibilia" in filing of refund claims in time. According to the petitioners, they had to liaison with the Directorate of Revenue Intelligence to get copies of the Bills of Entries and since the Bills of Entries were not given to the petitioners in time, there was a delay in filing the refund claims. It is therefore submitted that seizure of documents by the Directorate of Revenue Intelligence cannot....
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....opy of Mahazer dated 2-7-2013 of M/s. Kaamdaa Impex which has been filed indicates that documents were seized. It is not clear whether copies of other writ petitioner M/s. M.M. Enterprises were also seized on 2-7-2013 by the officers of Directorate of Revenue Intelligence. Copy of Mahazer of the said writ petitioner has not been filed. 23. In my view, denial of refund claims based on the limitation prescribed under the Notification cannot be justified and imposed against the petitioner M/s. Kaamdaa Impex as all the documents of the said petitioner were admittedly seized as per the Mahazer dated 2-7-2013. The said writ petitioner could not have filed the refund claims in absence of the vital documents. 24. Therefore, the impugned orders impugned in W.P. Nos. 22385 and 22386 of 2016 and W.P. No. 24269 of 2016 denying the benefit of refund of Special Additional Duty paid under Section 5(3) of the Customs Tariff Act, 1975 are quashed and cases are remitted back to the second respondent to pass a fresh order of refund of the amounts paid by the petitioner at the time of import, if the said writ petitioner has otherwise satisfied the other requirements of No....