2017 (1) TMI 528 - AT - Customs

Refund of SAD - time limitation - whether the time limit prescribed in the N/N. 93/08 dated 01.08.2008 will have the retrospective application for denying the refund benefit to the imports made during the period from 19.09.2007 to 18.01.2008? - Held that - The issue arising out of the present dispute is no more res integra, in view of the judgment of Hon ble Delhi High Court, in the case of Sony India Pvt. Ltd. - Vs. - Commissioner of Customs, New Delhi, 2014 (4) TMI 870 - DELHI HIGH COURT , where it was held that subsequent sale of goods on incurrence of sales tax/VAT is the condition precedent for claiming refund of the SAD amount and that since achieving such objective is not in the hands of tax payer, time limit cannot be prescribed by issuance of notification under sub-section (1) of Section 25 ibid. The refund claim filed by the appellant is not barred by limitation of time - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Refund of Special Additional Duty (SAD) under Notification No. 102/07-Cus.
- Time limit for filing refund application under Notification No. 93/2008-Cus.

Analysis:
The appellant sought a refund of SAD under Notification No. 102/07-Cus, which was rejected due to filing after the one-year limit specified in Notification No. 93/2008-Cus. The Tribunal considered whether the time limit in the latter notification applied retrospectively to imports made between September 2007 and January 2008. The original notification did not set a time limit, but the amended version required filing within one year of SAD payment.

The Tribunal noted that the appellant imported goods before the amended notification came into effect. The judgment of the Delhi High Court in Sony India Pvt. Ltd. v. Commissioner of Customs, New Delhi was referenced, stating that the right to claim refund accrues only after the subsequent sale of goods incurs sales tax/VAT, a market-driven event beyond the importer's control. The High Court ruled that imposing a time limit before this right accrues would be inappropriate. The Tribunal distinguished another case where the issue was the starting point of the one-year limit, unlike the present case where the goods were imported and duty paid before the amended notification.

Based on the above analysis, the Tribunal concluded that the appellant's refund claim was not time-barred. The impugned order was set aside, and the appeal was allowed in favor of the applicant, granting the consequential benefit of refund. The decision was pronounced in open court on 02.01.2017.