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2023 (5) TMI 46 - AT - CustomsRefund of SAD - time limitation prescribed under N/N. 102/2007 - rejection holding the claim to have been filed beyond a period of one year as prescribed under Notification No.93/2008 - HELD THAT - No doubt the period involved in the said decision is of the year 2007 when Notification No.102/2007 had no time limit prescribed for filing the refund claim of SAD. However, in August, 2008 the said Notification got amended vide Notification No.93/2008 wherein one year time period was prescribed for filing the refund claim. Section 27 of Customs Act, 1962 talks about the refund and a time limit has also been prescribed therein. The same has been taken note of by Hon ble Delhi High Court even in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS 2014 (4) TMI 870 - DELHI HIGH COURT - Keeping in view the amendment to be subsequent to the Sony s decision that this Tribunal vide the decisions as relied upon by ld. D.R. had upheld the rejection of SAD refund claim on the basis of time limit. In the recent decision of COMMISSIONER OF CUSTOMS ICD TKD VERSUS THERMOKING 2022 (8) TMI 936 - DELHI HIGH COURT , Hon ble High court of Delhi has also discussed Section 27 of Customs Act. However, still the earlier decision of Sony India has been impressed upon holding that the limitation cannot be prescribed by a Notification, thus, holding the Notification No.93/2008 as a flawed one. In view of those findings subsequent to the earlier findings of this Tribunal and also in view of the Code of judicial protocol, it is the recent decision of Hon ble High Court of Delhi in Termoking which has to be followed. The Hon ble High Court has held that refund of SAD cannot be rejected on the grounds of limitation. The order under challenge is hereby set aside - Appeal allowed.
Issues:
1. Refund claim of SAD under Notification No.02/2007-Cus rejected based on time limitation. 2. Applicability of time limit for filing refund claim under Notification No.93/2008. 3. Interpretation of statutory provisions and judicial precedents regarding time limits for refund claims. Issue 1: Refund claim of SAD under Notification No.02/2007-Cus rejected based on time limitation: The appellant imported fabrics and sought a refund of Special Additional Duty (SAD) paid on 9 consignments. The claim was found time-barred by the Original Adjudicating Authority under Notification No.93/2008, which amended Notification No.02/2007-Cus. The Commissioner (Appeals) upheld the rejection, leading to the appeal before the Tribunal. Issue 2: Applicability of time limit for filing refund claim under Notification No.93/2008: The appellant relied on the decision in Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi, arguing that the time limit prescribed in Notification No.93/2008 should not apply. The Tribunal discussed conflicting views on this issue, citing cases where the time limit was enforced for filing refund claims of SAD under similar notifications. Issue 3: Interpretation of statutory provisions and judicial precedents regarding time limits for refund claims: The Tribunal analyzed the legal position, noting the amendment in Notification No.93/2008 imposing a one-year time limit for refund claims. Despite precedents upholding the time limit, the appellant cited recent judgments, including Commissioner of Customs vs. Thermoking, where the High Court held that limitations cannot be imposed through notifications. Ultimately, the Tribunal followed the recent decision in Thermoking, setting aside the order and allowing the appeal based on the principle that the refund of SAD cannot be rejected on the grounds of limitation. In conclusion, the Tribunal overturned the rejection of the refund claim of SAD under Notification No.02/2007-Cus based on time limitation, emphasizing the recent judicial stance that limitations cannot be imposed through notifications. The decision highlights the evolving interpretation of statutory provisions and judicial precedents regarding time limits for refund claims, ultimately favoring the appellant's position in this case.
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