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2019 (10) TMI 61 - AT - CustomsRefund of SAD - import of marine diesel engines - time limitation - N/N. 102/2007-Cus dated 14.09.2007 as amended vide Notification No. 93/2008-Cus. - HELD THAT - A cursory reading of the Notification No. 102/2007-Cus. and Notification No. 93/2008-Cus. would clearly reveal that in the public interest, such notifications were made by the Government of India and as discussed earlier, SAD was made applicable to counter balance CST/VAT and create a level playing field for domestic goods so that price difference between the locally manufactured goods and imported goods would not put the local manufacturer in a disadvantageous position. Admittedly CST, VAT are collected for distribution among the States, for which it is difficult to understand why SAD is introduced as a counter balance. It appears that only to maintain the price equilibrium, SAD has been introduced as a precautionary measure to provide coverage to indigenous goods. Having regard to the definition of relevant time given in Explanation (3) of Sub-Section (5) of Section 11B of the Central Excise Act, 1944 wherein time frame is stated to have run from the date on which refund is held to be payable, I am of the firm opinion that the same period of one year is to be computed from the date of payment of CST, VAT etc. upon sale of goods. It is a settled principle that Tribunal being creature of statute, cann t go beyond the provisions of law but there is no impediment on the part of the Tribunal to read into the law to provide meaning and clarify to the provisions of law for the purpose of making it virtually implementable. The refund application being filed within one year of such payment of sales tax i.e. on dated 16.03.2016, the same is to be treated to have been claimed within the period of limitation as contemplated in the amended Notification No. 93/2008-Cus. and the said refund is therefore to be allowed by the jurisdictional refund authority. The appeal modified to the extent of allowing refunds of SAD paid against three Bills of Entry dated 29.10.2014, 17.10.2014, 17.11.2014 except refund of the amount against which VST/CST was paid on 20.10.2014 - appeal allowed in part.
Issues Involved:
1. Denial of refund of Special Additional Duty (SAD) on the ground of limitation. 2. Interpretation of the time limit for filing a refund claim under Notification No. 93/2008-Cus. 3. Judicial precedents and their applicability in interpreting the time limit for refund claims. Detailed Analysis: 1. Denial of Refund of SAD on the Ground of Limitation: The appellant sought the refund of ?9,64,094/- paid as SAD during the importation of marine diesel engines through three Bills of Entry dated October to November 2014. The refund application was filed on 16.03.2016 and was rejected by the Assistant Commissioner of Customs on the grounds of limitation. The appellant's appeal before the Commissioner (Appeals) was also unsuccessful, leading to the current appeal before the Tribunal. 2. Interpretation of the Time Limit for Filing a Refund Claim: The appellant argued that the relevant date for the one-year limitation period should be the date of payment of VAT/CST, not the date of payment of SAD. They relied on the Delhi High Court's decision in M/s Soni India Pvt. Ltd. and the Tribunal's decision in M/s Bitumen Corporation (I) Ltd., which supported this interpretation. The respondent-department, represented by the Assistant Commissioner, contended that the Bombay High Court in CMS Info System Ltd. held that the one-year time limit prescribed in Notification No. 93/2008-Cus. must be adhered to, and this decision should be binding on the Tribunal. 3. Judicial Precedents and Their Applicability: The Tribunal examined the conflicting judgments of the Delhi High Court and the Bombay High Court. The Delhi High Court had rejected the one-year time frame as arbitrary, while the Bombay High Court upheld it, emphasizing compliance with all conditions of the exemption notification. The Tribunal noted that as a national tribunal, it has the freedom to consider judgments from different High Courts and decide which authority applies more aptly to the facts of the case. The Tribunal highlighted the purpose of SAD, which was to create a level playing field for domestic goods by counterbalancing CST/VAT and ensuring no double taxation. Conclusion: The Tribunal concluded that the one-year time limit for filing a refund claim should be computed from the date of payment of CST/VAT upon the sale of goods, not from the date of payment of SAD. This interpretation aligns with the purpose of SAD as a counterbalance to CST/VAT and prevents double taxation. The Tribunal allowed the appeal in part, modifying the order of the Commissioner of Customs (Appeals-II) to allow the refund of SAD paid against the three Bills of Entry, except for the amount against which VAT/CST was paid on 20.10.2014. The refund process was ordered to be completed within two months from the date of receipt of the order, with due regard to Section 11BB of the Central Excise Act concerning interest on delayed refunds. Order: The appeal is allowed in part, and the order of the Commissioner of Customs (Appeals-II) is modified to allow the refund of SAD paid against the three Bills of Entry, except for the amount against which VAT/CST was paid on 20.10.2014. The refund process must be completed within two months from the date of receipt of this order, with due regard to Section 11BB of the Central Excise Act.
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