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2022 (5) TMI 259 - AT - CustomsRefund of SAD - Time Limitation - eligibility for refund after one year from the date of payment or otherwise - applicability of N/N. 102/2007-Cus dated 14.09.2007 - HELD THAT - As regards limitation for the purpose of claiming refund of SAD under Notification No. 102/2007-Cus, as per the judgments cited by learned AR, it is settled that period of limitation should be reckoned from the date of payment of duty. However, on the issue raised by learned Counsel that the refund claim is well within the time-limit as assessment was provisional at the time of clearances of goods and the same was finalized on 18.05.2018 whereas the refund claim was filed before that i.e. on 23.04.2018. It is an admitted fact that this issue has not been raised before the lower authorities however, this issue being a question of law, can be raised before this Tribunal. Since the facts of this issue has not been verified by the lower authorities, the matter is remitted back to the Adjudicating Authority to decide the matter afresh after taking into consideration the aspect of provisional assessment of imported goods - Appeal allowed by way of remand.
Issues involved:
Whether the appellant is entitled to a refund of Special Additional Duty (SAD) paid under Notification No. 102/2007-Cus after one year from the date of payment or otherwise. Analysis: The primary issue in this case revolves around the entitlement of the appellant to a refund of Special Additional Duty (SAD) paid under Notification No. 102/2007-Cus. The appellant's counsel argues that the period of limitation for claiming the refund should be calculated from the date of sale of goods, not the date of payment. Citing the judgment of the Delhi High Court in the case of Sony India Pvt. Limited vs. CC, New Delhi, the counsel asserts that the refund accrues only after the sale of goods. Even if the limitation period is considered from the date of duty payment, the appellant contends that the refund claim was within the time limit, as the assessment was provisional at the time of clearances and finalized later, with the refund claim filed before the finalization. On the other hand, the Revenue's representative argues that, based on various settled case laws, the time limit for claiming a refund of SAD under Notification No. 102/2007-Cus should be calculated from the date of duty payment, not the date of sale. The representative distinguishes and criticizes the judgment relied upon by the appellant's counsel, citing multiple judgments to support their argument. Additionally, the Revenue's representative contends that the issue of provisional assessment and its impact on the time limit was not raised before the lower authorities and cannot be considered at this stage. After considering the arguments from both sides and reviewing the records, the Tribunal acknowledges the settled principle that the limitation period for claiming a refund of SAD should be calculated from the date of duty payment. However, regarding the issue of provisional assessment and its impact on the time limit, which was not raised before the lower authorities, the Tribunal deems it a question of law that can be raised before them. As this issue requires further examination and verification of facts, the Tribunal remits the matter back to the Adjudicating Authority for a fresh decision. The impugned order is set aside, and the appeal is allowed by way of remand to the Adjudicating Authority, with the appellant given the opportunity to submit all relevant documents on the provisional/final assessment. The Adjudicating Authority is directed to provide a sufficient opportunity for a personal hearing to the appellant and pass a de novo adjudication within three months from the date of the Tribunal's order.
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