2018 (10) TMI 1819 - HC - Customs

Refund of SAD - rejection on the ground of non-fulfilment of the condition 2(c) of Notification No. 102 of 2007-Cus., dated 14-9-2007 - HELD THAT - Upon perusing the materials on record, it is clear that the Government of India, by its Notification No. 102 of 2007-Cus., dated 14-9-2007 and subsequent Notification No. 93/2008-Cus., dated 1-8-2008, exempted certain goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and thereby, permitted an importer to seek for refund of additional duty of customs paid to the customs department on certain conditions - The Lower adjudicating authority has rejected the application for refund on the grounds that the claim made by the respondent, was time-barred, is not as per condition 2(c) of the notification dated 1-8-2008. Subsequently, the Commissioner of Customs (Appeals-II), by an Order-in-Original C.Cus II No. 624/2015, dated 30-6-2015, allowed the appeal in favour of the claimant, on the grounds that 10% of the imported goods were released by the claimant only on 4-6-2014, and by that time, the time limit for filing the refund claim was already over and hence, there was no possibility for the respondent/claimant, to file a claim, within the prescribed time limit. It is not in dispute that though the duty was paid on 15-5-2013, on which day, only 90% of the goods were released and however, the remaining 10% of the goods were released only on 4-6-2014. If the Notification No. 102 of 2007-Cus., dated 14-9-2007 as amended by Notification No. 93/2008-Cus., dated 1-8-2008 is to be strictly applied, then the date on which the remaining 10% of goods released could only be taken as the date commencing for claim of refund and not on the date on which, the duty was paid i.e. on 15-5-2013 as the respondent has no possibility to file the claim unless 100% of goods were released. We are unable to accept the arguments put forth by the Learned Counsel for the appellant department and hence, the order passed by the Commissioner of Customs dated 30-6-2015 and the order of the Customs, Excise Service Tax Appellate Tribunal, are in order, and cannot be set aside and not interfered with - Appeal dismissed.

Summary

Issues:
1. Claim for refund of Additional Duty of Customs.
2. Interpretation of Notification No. 102 of 2007-Cus. and subsequent amendments.
3. Period of limitation for filing refund claims.
4. Adjudication by lower authorities and appellate tribunals.
5. Application of legal precedents in deciding the case.
6. Dismissal of the Civil Miscellaneous Appeal.

Analysis:
1. The case involved a claim for refund of Additional Duty of Customs by the importer/respondent, which was initially rejected by the adjudicating authority for non-fulfillment of conditions under Notification No. 102 of 2007-Cus. The dispute centered around the importer's failure to file the refund claim within the prescribed period.

2. The Notifications issued by the Government of India exempted certain goods from Additional Duty of Customs under specific conditions, including the requirement for importers to pay duties, indicate no credit in sale invoices, and file refund claims with customs officers. Subsequent amendments, like Notification No. 93/2008-Cus., imposed a one-year limitation from the date of payment for filing refund claims.

3. The lower adjudicating authority rejected the refund application as time-barred since the importer filed it after the one-year period from the payment of duty. The Commissioner of Customs (Appeals-II) reversed this decision, citing the delayed release of 10% of goods and directed a reevaluation of the claim.

4. The Customs, Excise & Service Tax Appellate Tribunal dismissed the appeal by the Customs Department, upholding the Commissioner's decision. The Tribunal relied on legal precedents like the case of Commissioner v. Sony India Pvt. Ltd. to support their judgment.

5. The Court found that the delayed release of goods affected the timeline for filing the refund claim, emphasizing the importance of when 100% of goods were released as the starting point for the claim. The Court upheld the decisions of the lower authorities and the Tribunal, dismissing the appeal by the Revenue Department.

6. Ultimately, the Court concluded that the decisions made by the authorities and the Tribunal were in order and not erroneous. The Civil Miscellaneous Appeal by the Revenue Department was dismissed, with no costs awarded, and the connected miscellaneous petition was closed.