2023 (3) TMI 336 - AT - Customs

Refund of Special Additional Duty (SAD) - rejection on the ground of limitation, following the ruling of Hon ble Bombay High Court in the case of M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA OTHERS 2017 (1) TMI 786 - BOMBAY HIGH COURT holding that the refund claim had to be filed within a period of one year from the date of payment of SAD, in view of the amendment vide Notification no.93/2008- Customs. HELD THAT - The issue herein is squarely covered by the rulings of the Hon ble Delhi High Courts in COMMISSIONER OF CUSTOMS (IMPORT) VERSUS GULATI SALES CORPORATION 2017 (11) TMI 1300 - DELHI HIGH COURT , in favour of appellant. Further, the ruling of the Hon ble Bombay High Court in M/s. CMS Info Systems Ltd. has been distinguished by this Tribunal in COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS S.R. TRADERS 2020 (12) TMI 503 - CESTAT NEW DELHI , which judgement has been upheld by the Hon ble Delhi High Court in COMMISSIONER OF CUSTOMS VERSUS S.R. TRADERS 2022 (4) TMI 1167 - DELHI HIGH COURT . The Adjudicating Authority is directed to grant refund along with interest @ 12% p.a., starting from the end of 3 months from the date of filing of refund application. The appeal is allowed.

Summary

Issues involved:
Refund of Special Additional Duty (SAD) under Notification No.102 of 2007-Customs dated 14.09.2007, as amended by Notification No.93/2000-Customs.

Analysis:

The appellant imported goods and paid SAD amounting to Rs.15,37,921, in lieu of sales tax, for which a refund was sought under the relevant notification. The refund claim was rejected as time-barred based on the ruling of Hon'ble Bombay High Court in a specific case, which required the claim to be filed within one year from the payment date of SAD. The Commissioner (Appeals) upheld the rejection, leading to the appeal before the Tribunal.

The appellant argued that the limitation period for claiming SAD refund was not prescribed in the original notification and cited judgments by the Hon'ble Delhi High Court to support the contention that no time limit could be introduced through subordinate legislation. The appellant emphasized that the right to claim a refund must crystallize before the limitation period starts running. Several cases were cited to establish the consistent application of this principle in similar matters.

The Tribunal found that the issue was settled by the Delhi High Court judgments referenced by the appellant, which held that the limitation period under Section 27 would not automatically apply to refunds under the specific notification in question. The Tribunal also distinguished the Bombay High Court ruling in a previous case and cited its own decision, upheld by the Delhi High Court, to support the appellant's position.

Consequently, the Tribunal allowed the appeal, setting aside the impugned order and directing the Adjudicating Authority to grant the refund with interest at 12% per annum, starting from three months after the refund application was filed. The appellant was entitled to consequential benefits, and the refund was to be processed within 60 days from the date of the Tribunal's order.