TaxTMI 
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2024 (6) TMI 257
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....toms 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 effect to upon fulfillment of certain conditions laid dow....
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....xpiry 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 supplied) 5. The appellant filed a refund application on 15.03.2016 seeking refund of the additional duty amounting to Rs. 4,23,847/- in respect of the ....
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....e 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 for the appellant on the decision of the Delhi High Court in Sony India to contend that the limitation of one year for an importer to file a claim for refund would not apply. Learned authorized repre....
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....elhi (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 appellant, the learned counsel for the intervenor and the learned authorized representative appearing for the department have been considered. 14. As noticed above, the sole question that arises for consideration in this appeal is whether the limitation of one year ....
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....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 portions of the judgment of the Delhi High Court in Sony India are reproduced below:- "10. That the importer is required to produce invoices of sale, documents evidencing payment of sales tax/VAT etc. clearly indicates that the benefit of this notification can be availed only once sale of the imported goods is compl....
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.... 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 the 2007 Notification. The net effect of these was that a one year period was insisted upon for refund applications. That period was calculable from date of payment of duty (SAD). Dr Partap Singh & Anr v. Director of Enforcement, Foreign Exchange Regulation Act & Ors., 1985 (3) SCC 72 is an authority for the proposition that the use of the phras....
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....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 law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. Khemka and Co. (Agencies) Private Ltd. v. State of Maharashtra, (1975) 35 STC 571 and other decisions are authority on the question that in matters which deal with substantive rights, such as imposition of penalties and other provisions ....
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.... 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 provided for in the amended notification dated 1 August, 2008 has to be read down in as much as the right to claim refund could accrue to an importer only when the subsequent sale is completed and given the vagaries of the market, the importer has limited control over when the sale would be complete. It is for this reason that the Delhi High Court held that to allow the limitation period to start from the date of payment of duty a....
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....2.2018 (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 under Section 27 of the Customs Act, 1962 is applicable in case of refund of the SAD. 10. Mr. Pratap Singh Ahluwalia, learned counsel appearing for the appellant, states that the Customs Authorities had filed a Special Leave Petition seeking leave to defend against the decision of this Court in Sony India Pvt. Ltd. v. Commissioner of Customs (supra). However, the said petition was dismissed by the Supreme Court by an order dated 26.02.2016 on the ground of d....
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....ed 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, New Delhi, 2014 (304) ELT 660 (Del), as also by another judgment dated 21.09.2016, rendered by another coordinate bench of this Court in CUSAA No. 25/2016, titled Commissioner of Customs (Import) v. Wilhelm Textiles India Pvt. Ltd. 3. We are informed, that these decisions were followed by another coordinate bench [comprising one of us i.e. Rajiv Shakdher J.,] in the matter of Commissioner of Customs v. S.R. Traders. This judgment was passed in CUSAA No. 36/2021 and is dated 19.04.2022. ***** 5. We may also add that the authoritie....
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....d 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 limitation period specified under Section 27 of the Act would apply to claims for refund made under the notification of 2007, which had not prescribed a specified period of limitation. ***** 8. We, therefore, do not find any conflict between the view expressed in Riso India (supra) and Sony India (supra). In fact, the Division Bench in Riso India (supra) could not have taken a different view without referring the matter to a Larger Bench in case they felt that the view expressed in the former decision required reconsideration. The Division Bench in Riso India (supra) observed that in Sony India (supra) "the Court was ....
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.... 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 India Pvt. Ltd. case. 4.4 This aspect was also noticed by another Coordinate Bench in a judgment dated 19-4-2022, passed in CUSAA No. 36/2021, titled Commissioner of Customs v. S.R. Traders, which included one of us i.e., Rajiv Shakdher J. In S.R. Traders, it had been noted that Bombay High Court in CMS Info Systems Ltd. v. Union of India - 2017 (349) E.LT. 236 = [2017] 78 taxmann.com 294 = [2017] 61 GST 33 had taken a different view." (emphasis supplied) 30. Learned authorized representative of the department has, however, placed much emphasis on the judgment of the Bombay High Court in CMS Infosys System. This judgment was rendered in a writ petition filed under article 2....
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....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 Court had, on the other hand, in Sony India examined the provisions of the notification dated 14.09.2007 as also the notification dated 01.08.2008 that amended paragraph 2(c) of the notification dated 14.09.2007 and introduced a time limit of one year. It is on a perusal of the said notification dated 14.09.2007 that the Delhi High Court observed that the importer is required to produce invoices of sale and documents evidencing payment of sales tax / VAT, which would clearly mean that the benefit of the notification can be availed only when the sale of the imported goods is complete; that the intention of the exemption notification is to allow refund of the additional duty of customs because the importer has ....
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.... 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 section 27 of the Customs Act, the Division Bench observed: "8. The words used in the provision makes it clear that statute has not distinguished the nature of duty or interest, the refund where of is claimed. Hence, even if we do not look into the amended Notification No.93/2008, the period of limitation as applicable for filing the refund claim under Notification 102/2008 will otherwise be a period of one year in accordance of the aforesaid Section 27 of the Customs Act." 38. The Division Bench of the Tribunal in JG Impex relied upon section 27 of the Customs Act, which was held to be not applicable in case of refund of additional duty by the Delhi High Court in Sony India. The decision of the Delhi High Court i....