2013 (5) TMI 408 - AT - Customs

Refund of SAD paid at the time of import of goods Rejection of the on the ground of limitation As Notification No. 93/2008 prescribes the limitation of one year for filing of the SAD refund claim. - appellant s contention is that their assessment was provisional and the date of finalization of assessment was taken as the relevant date for computing the period of limitation of one year. Held that - Revenue itself was taking a view that wherever the assessments are provisional, refund claims have to be filed within a period of one year of the finalization of the same. It is only with the Board s Circular that the issue was settled by observing that inasmuch as the refund is not under Section 27 of the Customs Act, 1962, the fact of finalization of bill of entry assessment cannot be taken as the relevant date. As such without going into the validity and correctness of the Circular issued, without deciding the legal issue as to whether it is provision of Section 27 which will apply or not, I hold that in the peculiar facts and circumstances of the present case, refund claim cannot be rejected on the point of time bar. Accordingly, I set aside the impugned order remand the matter to the adjudicating authority for processing the refund claim after verification of the documents etc. Appeal is allowed in above terms.

Summary

Issues:
Refund of SAD paid by the appellant at the time of import of goods - Rejection of refund claim on the ground of limitation - Interpretation of the period of one year for filing the SAD refund claim - Appellant's contention of the relevant date for computing the period of limitation - Board's Circular regarding the date for determining the prescribed period of one year - Uniformity in procedure for sanction of 4% CVD refund claims in cases of provisional assessments.

Analysis:
The judgment by the Appellate Tribunal CESTAT, New Delhi, involved the issue of the refund of Special Additional Duty (SAD) paid by the appellant at the time of import of goods. The refund claim was rejected on the basis of limitation, citing Notification No. 93/2008, which prescribed a one-year limitation period for filing SAD refund claims. The appellant argued that their assessment was provisional, and the relevant date for calculating the limitation period should be the date of finalization of assessment, not the date of payment of duty.

The appellant's advocate highlighted that previous SAD refund claims were returned as the bill of entry was provisionally assessed, and they were instructed to file the refund claim after the finalization of the bill of entry. However, these previous claims were not related to the bills of entry in the current appeal. The advocate emphasized that the present refund claim was filed after the final assessment of the bill of entry, within the one-year period from finalization.

Upon hearing the arguments, it was noted that the refund claims were not filed within the period specified in Notification No. 93/2008 but were submitted within one year from the final assessment of the bills of entry. A letter from the Refund Superintendent acknowledged the provisional assessment of the bills of entry and requested the final assessment documents. The Tribunal considered the Board's Circular No. 23/2010, which addressed the divergent practices in different Customs Houses regarding the date for determining the one-year period for refund claims in cases of provisional assessments.

The Tribunal observed that prior to the Circular, the Revenue considered the date of finalization of assessment as the relevant date for refund claims in provisional assessments. However, the Circular clarified that the date of payment of duty, not the finalization of assessment, should be considered for the one-year period. Despite not delving into the legal validity of the Circular, the Tribunal held that in the circumstances of the case, the refund claim could not be rejected on the grounds of being time-barred. The impugned order was set aside, and the matter was remanded for processing the refund claim after document verification. The appeal was allowed based on these findings.