TaxTMI 
TaxTMI 
2024 (4) TMI 730
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....er of Customs, Kandla [2024 (387) E.L.T. 621 (Tri. - Ahmd.)]. Accordingly, he requested to allow their appeals. 3. The Ld. Authorized Representative appearing for the Revenue submits that this Bench has decided this matter in the case of M/s. Abhishek Marketing v. Commissioner of Customs (Port), Kolkata [Final Order No. 75572 of 2024 dated 20.03.2024 in Customs Appeal No. 79748 of 2018 - CESTAT, Kolkata] wherein the Tribunal has held that the one-year period for filing the refund claim should start from the date of payment of additional customs duty. Accordingly, he prayed for rejecting the appeals filed by the appellant. 4. Heard both sides and perused the appeal documents. 5. I find that on an identical set of facts, this Tribunal in the case of M/s. Abhishek Marketing (supra) has analysed a similar issue, wherein it has been categorically observed as under: - "8. The period in the Sony India case was December 2007, that is prior to the amendment carried out vide Notification No. 93/2008-Cus dated 01.08.2008. The Delhi High Court has followed the Sony India judgement in the Gulati Sales Corporation case wherein again the period of import was September, 2007 to J....
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....y 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 leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled : (a) the importer of the said goods shal....
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....ntive 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 Court further held that but for the exemption notification, there is no right of refund vested with the importer. 11. In view of the above legal position and factual matrix, Ld. Counsel for the appellants submits that the position of law enuncia....
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....h 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 within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee ....
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....n 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'ble High Court held that refund is available without the limitation of one year indicated in the exemption Notification No. 102/97 after amendment. On the other hand, the Hon'ble Bombay High Court has constructed the exemption notification strictly and held that all....