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2018 (7) TMI 192 - AT - CustomsRefund of SAD - N/N. 102/2007-CUS dated 14.09.2007 as amended - Rejection on the ground of time limitation - the appellant filed the refund claims after the period of one year - Held that - There is no dispute on the facts of the case that the refund claim was filed after one year from the date of payment of duty and as such was not eligible to be sanctioned in terms of Notification No.102/2007-CUS as applicable during the relevant period. The Learned Commissioner (Appeals) had relied on the judgment of the Hon ble High Court of Delhi in the case of Sony India Pvt Ltd, 2014 (4) TMI 870 - DELHI HIGH COURT wrongly holding that this judgment reached finality as the Hon ble Apex Court has dismissed the appeal of the Revenue thereon. In fact the Hon ble Apex Court had clearly dismissed the petition on the grounds of time bar, leaving the question of law open. As a creation of law, the Tribunal cannot go beyond the law itself. The validity of the Act, Rules, Regulations and Notifications cannot be questioned or modified by the Tribunal. Only the High Courts and Supreme Court which examine the constitutionality of the laws can do so. Unless the notification is amended or modified by a judicial pronouncement of the High Court having jurisdiction over this Bench or of the Supreme Court, the Tribunal is bound to follow the notification as it stands - In this case not only is there no judgment of the jurisdictional High Court but there are two conflicting judgments of two different High Courts. Under these circumstances, the proper course of action for me is to follow the notification. Time limitation applies - refund rightly rejected - appeal allowed - decided in favor of Revenue.
Issues:
- Interpretation of Notification No.102/2007-CUS and subsequent amendments - Applicability of time limitation for filing refund claims - Conflict between judgments of different High Courts Analysis: 1. Interpretation of Notification No.102/2007-CUS and subsequent amendments: The case involved the import of lithium ion battery packs and the payment of Special Additional Duty (SAD) by the respondent. The appellant filed refund claims after the one-year limitation period specified in the notification, leading to rejection by the Assistant Commissioner. The Commissioner (Appeals) allowed the appeal based on the judgment of the Hon'ble High Court of Delhi in Sony India Pvt Ltd, which held that the limitation of time should not apply to SAD refunds. However, the Revenue challenged this decision, arguing that the judgment was specific to a retrospective application context. 2. Applicability of time limitation for filing refund claims: The Revenue contended that the Hon'ble High Court of Delhi's judgment did not apply to cases post-amendment, unlike the present situation. They cited the Hon'ble High Court of Bombay's decision in CMS Info Systems Ltd, which upheld the one-year limitation period for filing refund claims. The Tribunal emphasized that unless the notification is amended or modified by a judicial pronouncement, the Tribunal must adhere to the notification as it stands. The Tribunal found that the Commissioner (Appeals) erred in disregarding the time limitation under Notification No.102/2007-CUS for SAD refunds. 3. Conflict between judgments of different High Courts: The case highlighted a conflict between the judgments of the Hon'ble High Court of Delhi and the Hon'ble High Court of Bombay regarding the constitutional validity of the time limitation for seeking SAD refunds. While the Hon'ble High Court of Delhi struck down the limitation period imposed by the amending notification, the Hon'ble High Court of Bombay upheld the validity of the notification. In the absence of a judgment from the jurisdictional High Court or the Apex Court, the Tribunal followed the notification's provisions, ultimately allowing the appeals filed by the Revenue and setting aside the Orders-in-Appeal. In conclusion, the Tribunal's decision emphasized the importance of adhering to the provisions of the notification and highlighted the need for clarity and consistency in interpreting legal provisions across different jurisdictions.
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