TaxTMI 
TaxTMI 
2024 (6) TMI 257
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.... The appellant imported PVC resins on payment of customs duty, countervailing duty and special additional customs duty. This additional duty was paid by the appellant under section 3(5) of the Customs Tariff Act, 1975 [the Tariff Act] that provides that if the Central Government is satisfied that it is necessary in the public interest to levy on any imported article such additional duty as would counter- balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India, it may, by notification in the Official Gazette, direct that such imported article shall, in addition, be liable to additional duty at a rate not exceeding four per cent of the value of the imported article as specified in that notification. 3. The notification dated 14.09.2007 issued under section 25(1) of the Customs Act, 1962 [the Customs Act] exempts goods falling within the First Schedule of the Tariff Act, when imported into India for subsequent sale from the whole of the additional duty of customs leviable under section 3(5) of the Tariff Act. However, the exemption contained in the notification is given eff....
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....er shall file a claim for refund of the said additional duty paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty. The said notification dated 01.08.2008 is reproduced below: "Notification dated 1 August, 2008 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 makes the following amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 102/2007-Customs, dated the 14th September, 2007 which was published the Gazette of India, Extraordinary, vide number G.S.R. 598(E), dated the 14th September, 2007, namely, In the said notification, paragraph 2, for sub-paragraph (c), the following shall be substituted, (c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs." (emphasis su....
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....nder:- 6.4 Relying upon the judgment dated 01.10.2018 of Hon'ble Bombay High Court in Purab Textile, I hereby hold that the refund claim filed in the year 2015 by the appellant are is subject to limitation period of one year. Further the refund application is held to be time barred in terms of Notification no. 102/17-Customs dated 14.09.2007, having been filed on 30.11.2016, that is, one year after the date of payment of duty for all 04 Bills of Entry involved, which is between 23.09.201550 09.11.2015." (emphasis supplied) 8. The Commissioner (Appeals) held that since the refund claims were filed beyond one year from the date of payment of additional duty, they were rightly rejected. The judgment of the Delhi High Court in Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi [2014 (304) E.L.T. 660 (Del.)] was found to be not applicable as the period involved in the matter before the Delhi High Court was prior to the amendment made in the notification dated 14.09.2007 on 01.08.2008, by which limitation of one year was introduced. 9. When the appeal came up for hearing before the Division Bench of the Tribunal, reliance was placed by the learned counsel f....
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....ven event. The notification has, therefore, been read down by the Delhi High Court in Sony India; (ii) To support this contention, learned counsel also placed reliance upon two decisions of the Tribunal in Commissioner of Customs-New Delhi (ICD TKD) vs. Radial Rubber Industries [2020 (2) TMI 1212-CESTAT NEW DELHI] and Suzuki Motorcycle India Pvt. Ltd. vs. Commissioner of Customs [Customs Appeal No. 51655 of 2021 decided on 25.04.2024]; (iii) The decision of the Bombay High Court in CMS Info System has been distinguished by the Tribunal in Radial Rubber Industries and the Delhi High Court dismissed the appeal filed by the department against this decision on 19.04.2022; and (iv) The Tribunal has in number of decisions followed Sony India. 12. Shri Anurag Kumar, learned authorized representative appearing for the department, however, contended that in view of the decision of the Bombay High Court in CMS Info System, which decision has been followed by the Tribunal in various decisions, it has to be held that the limitation of the one year would be applicable in terms of the notification. 13. The submissions advanced by the learned counsel for the appel....
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....otification dated 14.09.2007 as amended on 01.08.2008 and the aforesaid provisions of the Tariff Act and the Customs Act were examined by the Delhi High Court in Sony India. It was held that since additional duty levied under section 3(5) of the Tariff Act is refundable only on a subsequent sale, no limitation can possibly be imposed for filing a refund claim from the date of payment of such additional duty. The High Court further observed that neither section 27 of the Customs Act nor the provisions of the amended notification dated 01.08.2008 can impose a limitation period and such limitation can only be introduced by legislation. The High Court also noticed that the expression "so far as may be" in section 3(8) of the Tariff Act was significant and this would mean that the provisions of Customs Act would be applicable only "to the extent possible". Thus, the High Court concluded that the period of limitation contemplated under section 27 of the Customs Act would not be applicable to a refund made under the notification dated 01.08.2008, more particularly when the customs authority also understood that section 27(1) of the Customs Act would not be applicable. The relevant portion....
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....ven the expropriatory consequences of such a limitation period. ***** 14. The expression "so far as may be" in this context, under Section 27 is significant as well as instructive. The levy under CUSAA3/2014 section 3 (5) is conditional upon the Central Government's opinion that it is necessary to "counter balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article.."; the rate of duty - where more than one levy exists, would be the highest of such rates and the terms of imposition of SADC would be spelt out in the notification. In this case, the regime existing before the notification of 2008 did not specify any period of limitation - and perhaps advisedly so. Some customs authorities apparently started applying section 27, drawing inspiration from section 3(8) which led to confusion. In Notification No.102/2007-Customs dated 14.09.2007 there was no period of limitation; by Circular No.6/2008-Customs, an amending notification providing for one year period from the date of payment of the additional duty of customs was issued, through Notification No.93/2008- Customs dated 1.8.2008, amending Para 2(c) of ....
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....ded to permit importers to file claims under the above exemption upto a period of one year from the date of payment of duty. Necessary change in the notification is being made so as to incorporate a specific provision prescribing maximum time-limit of one year from the date of payment of duty, within which the refund could be filed by any person. It is also clarified that the importers would be entitled to refund of duties only in respect of quantities for which the prescribed documents are made available and the claims submitted within the maximum prescribed time of one year. Unsold stocks would not be eligible for refunds." Notification No. 93/2008, dated 1-8-2008 was issued prescribing the period of limitation as one year from the date of payment of additional duty of Customs. 17. Plainly, therefore, Section 27 was understood as not applying to SAD cases, even though 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 la....
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.... based upon the date of payment of the S.A.D. and not based upon the date of further sale or payment of VAT, was held to be erroneous. In this view of the matter, it is held that the appeal, at least as far as the undisputed amounts with respect to the 5 bills of entry are concerned, requires to be allowed. xxxxxxxxx." (emphasis supplied) 20. This is also what was held by a Division Bench of the Tribunal in Radial Rubber Industries. The contention of the department that the decision of the Delhi High Court in Sony India would not be applicable to matters after the notification dated 01.08.2018 was issued, was repelled and the relevant observations are as follows: "22. Learned Authorised Representative of the Department has also submitted that the judgment of the Delhi High Court in Sony India would not be applicable for the reason that the refund in that case was filed at a time when the amended notification dated 1 August, 2008 had not been issued. 23. This submission cannot be accepted for the simple reason that the Delhi High Court has not allowed the refund claims for the said reason. It has allowed the refund claims as the limitation of one year provide....
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....ent preferred an appeal before the Commissioner of Customs (Appeals), New Delhi. The learned Commissioner of Customs (Appeals), relying upon the judgment passed by this Court in Sony India Pvt. Ltd. v. Commissioner of Customs: 2014 (304) ELT 660, allowed the appeal filed by the respondent by order dated 24.10.2017. The appeal filed by the appellant challenging the order dated 24.10.2017 was dismissed by the learned CESTAT by its order dated 21.02.2018 (impugned order). 8. The impugned order indicates that the learned CESTAT had followed its earlier decision in Commissioner of Customs, New Delhi v. M/s. Siya Paper Mart Pvt. Ltd.: final order No. 58613/2017 dated 27.12.2017. The said decision in Commissioners of Customs, New Delhi v. M/s. Siya Paper Mart Pvt. Ltd. (supra) was rendered following the decision of this Court in Sony India Pvt. Ltd. v. Commissioner of Customs: 2014 (304) ELT 660, whereby this Court had held that the rejection of refund of the SAD, on the ground of limitation, was not sustainable. 9. Concededly, the decision of this Court in Sony India Pvt. Ltd. v. Commissioner of Customs (supra), covers the controversy whether the time limit prescribed u....
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....issed. This decision is reported in Commissioner of Customs, New Delhi, Import vs. Nanak Electronics Pvt. Ltd. [2023 (7) TMI 1319- SC Order]. The relevant portion is reproduced below: "Delay condoned. In view of the order dated 04.07.2023 passed by this Court in SLP (C) Dy. No. 23340/2023 which has not been interfered with the order impugned therein. The special leave petition, accordingly, stands dismissed. Pending application(s),if any, shall stand disposed of." 26. The Delhi High Court again examined this issue in Premier Timber and Trading Pvt. Ltd. vs. Pr. Commissioner Customs Import [2022 (7)TMI 885-Delhi High Court] and the relevant portion of the decision is reproduced below: "1. The only issue, which arises in the present appeal, according to the learned counsel for the parties, concerns application of limitation vis-à-vis refund sought qua Special Additional Duty of Customs (SAD). 2. Mr. Vaibhav Joshi, who appears on behalf of the respondent/revenue, has fairly informed us that the issue stands covered by a judgement dated 16.04.2014 passed by a coordinate bench of this Court in Sony India Pvt. Ltd v. Commissioner of Customs, ....
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....n. 6.1 This aspect of the matter was dealt by this Court in Sony India Pvt. Ltd. case. 7. We respectfully agree with the view taken in Sony India Pvt. Ltd. and therefore, allow the instant appeal." (emphasis supplied) 27. In Commissioner of Customs (Import) vs. Gulati Sales Corporation [2018 (360) E.L.T. 277 (Del.)], the Delhi High Court reiterated the view expressed earlier in Sony India and the relevant portion of the judgment is reproduced below: "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'). 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). 5. Learned counsel for the appellant, however, has drawn our attention to the decision in Principal Commissioner of Customs v. Riso India Private Limited, 2016 (333) E.L.T. 33 (Del.) (hereafter 'Riso India'), which according to him, takes a different view from the view expressed in Sony India (supra). It is accordingly submitted that limitat....
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....ble. The Revenue notwithstanding the said understanding and their Circular, now seeks to contend and urge to the contrary. 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." (emphasis supplied) 28. It is however pointed out that Special Leave to Appeal (Civil) No. 4820 of 2018 filed by the department is pending before the Supreme Court. 29. This issue was also examined by Delhi High Court in Commissioner of Customs, ICD TKD vs. Thermoking [2023 (384) E.L.T. 315 (Del.)/(2023) 2 Centax 42 (Del.)] and the relevant portion of the judgment is reproduced below: "4.1 The issue which arises in the instant appeal, as in the Premier Timber case, concerns the application of limitation vis-à-vis refund sought qua Special Additional Duty of Customs, levied under Section 3(5) of the Customs Tariff Act, 1975. ***** 4.3 After examining the said judgments, we had agreed with the reasoning and conclusions arrived at in Sony In....
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....he sales tax or local taxes are required to be produced, that their production is also mandated in a particular period and within a particular time limit is not something which we are required to call upon and decide. We have before us a case of rejection of a refund application simply because it was not filed within one year from the date of payment of the additional duty of customs." (emphasis supplied) 31. It would be seen from the aforesaid paragraphs of the judgment of the Bombay High Court that the contention that an importer has to pay appropriate sales tax or value added tax on the sale and also provide copies of documents with the refund claim, otherwise the refund would not be admissible was not examined by the Bombay High Court for the reason that it was not possible to guess whether the refund application would be held non-maintainable on these grounds. The High Court also observed that this issue was not required to be examined or decided by the High Court because the High Court was only dealing with a case where the refund application had been rejected because it was not filed within one year from the date of payment of additional duty. 32. The Delhi High Cou....
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.... of the aforesaid discussion, it would be appropriate to follow the view taken by the Delhi High Court in Sony India. 36. In any view of the matter, the issue as to which judgment of the High Courts should be followed if conflicting views have been taken was decided by a Larger Bench (a five Member Bench) of the Tribunal in Collector of Central Excise, Chandigarh vs. Kashmir Conductors [1997 (96) E.L.T. 257 (Tri.)]. One issue that was addressed by the Larger Bench was what should be done when the Tribunal is faced with conflicting decisions of High Courts. The Larger Bench of the Tribunal held that if the jurisdictional High Court has taken a particular view on an interpretation or proposition of law, that view has to be followed but if the jurisdictional High Court has not expressed any view in regard to the subject matter and there are conflicting views of other High Courts, then the Tribunal will be free to formulate its own view. 37. A Division Bench of the Tribunal in C.C. - New Delhi (ICD TKD) (Import) vs. JG Impex Pvt. Ltd. [2018 (10) TMI 1483 - CESTAT NEW DELHI], however, attempted to distinguish the judgment of the Delhi High Court in Sony India. After referring to s....