9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (5) TMI 47 - AT - CustomsRefund of SAD - Rejection on he ground of time limitation (refund claim has been filed beyond the period of 12 months) - HELD THAT - The observation 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 have been differed and differentiated by this Tribunal in COMMISSIONER OF CUSTOMS, NEW DELHI VERSUS S.R. TRADERS 2020 (12) TMI 503 - CESTAT NEW DELHI which ruling have been upheld by Hon ble Delhi High Court in COMMISSIONER OF CUSTOMS VERSUS S.R. TRADERS 2022 (4) TMI 1167 - DELHI HIGH COURT . The Hon ble Bombay High Court in the case of M/s CMS Info Systems Ltd. did not consider the issue whether limitation can start to run prior to right to claim crystallizes. It is further found that the ruling of Delhi High court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS 2014 (4) TMI 870 - DELHI HIGH COURT have been followed by this Tribunal and also by the Delhi High Court in several similar matters, and repeatedly held that limitation cannot be introduced for the first time by way of subordinate legislation. Further, it is matter of common sense that limitation cannot start to run prior to right to claim arises. There are no error in the impugned order-in-appeal - Appeal of Revenue dismissed.
Issues:
The appeal involves the rejection of part of the refund claim of Special Additional Duty (SAD) by the Commissioner (Appeals) on the ground of limitation. Summary: Issue 1: Refund Claim of SAD The respondent, a regular importer, applied for a refund of SAD deposited at the time of import, in accordance with Notification No. 102/2007-CUS. The refund claim was made upon resale of the goods, subject to conditions specified in the notification. The Adjudicating Authority allowed the refund claim in part but disallowed the claim for a specific bill of entry, citing it as time-barred due to being filed beyond the prescribed period of 12 months. Issue 2: Introduction of Limitation The original Notification No. 102/2007-CUS did not specify a time limit for claiming the refund of SAD. Subsequently, a limitation of one year from the date of deposit of SAD was introduced through an amendment. The appellant contended that limitation cannot start before the crystallization of the refund claim, relying on the ruling of the Hon'ble Delhi High Court in a similar case. The Commissioner (Appeals) allowed the appeal based on this precedent and the dismissal of the Revenue's Special Leave Petition (SLP) by the Supreme Court. Issue 3: Appellate Tribunal's Decision The Revenue appealed to the Tribunal, arguing against the Commissioner's decision, citing a different ruling by the Hon'ble Bombay High Court. The Tribunal, however, upheld the Commissioner's decision, emphasizing that limitation cannot be introduced for the first time through subordinate legislation. The Tribunal also highlighted that limitation cannot commence before the right to claim arises, in line with previous judicial interpretations. Therefore, the Tribunal dismissed the Revenue's appeal, affirming the decision of the Commissioner (Appeals).
|
