TaxTMI 
TaxTMI 
2024 (3) TMI 1050
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....ayment of CVD. On appeal, the Commissioner (Appeals) has dismissed the same. Being aggrieved the appellant is before the Tribunal. 3. I have perused ground of appeal, OIO, OIA the relevant Notifications and the case laws cited by both the sides. 4. The Appellant has relied on the Delhi High Court judgment in the case of Commissioner of Customs (Import), Vs. Gulatisales Corporation 2018 (360) E.L.T. 277 (Del.). They have also relied on the judgment in the case of Sony India Pvt. Ltd., Vs. Commissioner of Customs, New Delhi, 2014 (304) E.L.T. 660 (Del.). 5. The Learned Authorized Representative relies on case law of M.S. Metals Vs. Commissioner of Customs (Prev.), Patna, 2017 (345) E.L.T. 113 (Tri.-Kolkata) and case laws of Tranasia Bio-Medicals Ltd., Vs. Commissioner of Customs (SEA), Chennai, 2021 (376) E.L.T. 381 (Tri.-Chennai) and Bombay High Court judgment in the case of CMS Info System Limited Vs. UOI, 2017 (349) E.L.T. 236 (Bom.). 6. In the case of Sony India Pvt. Ltd., Vs. Commissioner of Customs, New Delhi, reported in 2014 (304) E.L.T. 660 (Del.), the Hon'ble Delhi High Court had held as under:- "This is an appeal under Section 130 of the Customs Act, 1962, agains....
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....er of Customs (Import) vide present appeal under Section 130 of the Customs Act, 1962 (Act, for Short) impugns the Final Order dated 2nd January, 2017 passed by the Custom, Excise and Service Tax Appellate Tribunal (CESTAT) in Appeal No. C/268/2011 [2017 (352) E.L.T. 360 (Tribunal)]. 2. The impugned order allows the appeal preferred by the respondent- M/s. Gulati Sales Corporation and directs refund of Special Additional Duty (SAD) of Rs. 13,72,436/- under Notification No. 102/2007-Cus., dated 14th September, 2007. 3. In our opinion, the issue is covered by the decision of the Delhi High Court in the case of Sony India Private Limited v. Commissioner of Customs, 2014 (304) E.L.T. 660 (Delhi) (hereafter 'Sony India', wherein it has been held as under :- 4. The said judgment was followed in Pee Gee International v. Commissioner of Customs (ICD), Tughlakabad, New Delhi, 2016 (343) E.L.T. 72 (Delhi). 11. In view of the aforesaid, we find that the impugned order being in consonance with the ratio in the case of Sony India (supra), no case for interference is made out. No substantial question of law, therefore arises. The appeal is dismissed, without any order as to costs....
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....fore, there is no force in the appeals and therefore they may be rejected. Ld. DR relies on the judgment of Hon'ble High Court of Bombay with respect to SAD refunds in W.P. No. 388 of 2016 in the case of CMS Info Systems Ltd. v. Union of India - 2017 (349) E.L.T. 236 (Bom.) in which the Hon'ble High Court of Bombay has held that the importer has no vested right of refund and it flows only from the exemption notification and therefore all conditions of the exemption notification apply. Hence a refund claim filed after the period of one year is not admissible. [Notification No. 102/2007-Cus., dated 14-9-2007 as amended by Notification No. 93/2008-Cus., dated 1-8-2008] "Exemption from special CVD to all goods imported for subsequent sale when VAT/Sales Tax paid by importer. - In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) when imported into India for subsequent sale, from the whole of the additional duty of customs ....
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.... High Court of Delhi has also observed that w.e.f. 1-8-2008, the amending notification has introduced a time limit for claiming refund and that limitation cannot be inserted through a subordinate legislation because it is question of substantive rights of the importer and a statutory amendment is required for that purpose. 10. The Hon'ble High Court of Bombay in the case of CMS Info Systems Ltd. (supra) considered the above judgment of the Hon'ble High Court of Delhi and differed from it. The Hon'ble High Court of Bombay observed that in terms of Section 3(5) of the Customs Tariff Act, the provisions of Customs Act and the rules and mechanisms for refund apply to any claim of refund of SAD. Therefore, Section 27 of the Customs Act, 1962 including the time limit of one year applies. Further, the amended notification has also introduced a limitation for seeking refund. The Hon'ble Bombay High Court also held that this is an exemption granted and it is conditional. The exemption being conditional, it is not permissible to pick and choose the convenient conditions of the exemption notification and leave out those which are onerous and excessive. The Hon'ble High C....
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....equent sale and avail the exemption notification within the time period prescribed. On the other hand, the Hon'ble High Court of Bombay has constructed the exemption notification strictly and held that a conditional exemption notification must be viewed along with all the conditions therein and it is not open for the importer to pick and choose which conditions they would fulfil and which they would not. So the root of the case is one of interpretation of an exemption notification. 13. He fairly submits that there are a number of decisions by various judicial fora including the Hon'ble Apex Court taking both liberal and strict interpretations of the exemption notifications. In view of the conflicting judgments, the matter was referred to a Five-Judge Constitutional Bench of the Supreme Court in the case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company reported in 2018 (361) E.L.T. 577 (S.C.). Paras 52 & 53 of the this judgment were as follows: "52. To sum up, we answer the reference holding as under - (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes w....
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.... not have any vested, let alone absolute right, for refund of the SAD. We also note that the Hon'ble High Court of Bombay has considered the judgment of the Hon'ble Delhi High Court in the case of Sony India Pvt. Ltd. (supra) and differed from it. Further, in the case of Gulati Sales Corporation [2018 (360) E.L.T. 277 (Del.)] decided by the Hon'ble High Court of Delhi on 7-11-2017, the ratio of Sony India (supra) was followed even though the imports were made after amendment to the notification. Nevertheless, the undisputed position is that this is a case of a refund arising out of a conditional notification. 16. We find that the Hon'ble High Court of Delhi has taken a liberal view in interpreting the exemption notification and held that since the purpose of availing the SAD is to provide level playing field between the imported goods and the domestic goods, when the imported goods are resold on payment of VAT to the State Government, the exemption notification provides for refund of SAD. It may or may not be always possible for the importer to resell the goods and file the refund claim within time depending on his market conditions. Taking a liberal view, the Hon....