2023 (7) TMI 391 - AT - Customs

Refund of SAD - Time limitation - Finalization of assessment of Bill of Entry - rejection on the ground that claim for refund of SAD filed after the expiry of one year from the date of payment - HELD THAT - It is found that the Notification No. 102/2007-Cus. Dated 14 September, 2007 which was the relevant notification has made a prescription after amendment vide Notification No. 93/2008-Cus. dated 01 August, 2008 that importer has to file a claim for refund of SAD before the expiry of one year from the date of payment of the said additional duty of Customs. It is undisputed fact that the payments for the appellant were made on the provisional basis, but refund of SAD was filed before the finalization of assessment took place, with few exceptions, where again the refund claim was filed within one year from the date of finalization of assessment. This Court finds that the Board Circular as well as the Delhi High Court decision as reported in PIONEER INDIA ELECTRONICS (P) LTD. VERSUS UNION OF INDIA ANOTHER 2013 (9) TMI 705 - DELHI HIGH COURT was duly considered by the Division Bench of Delhi this Tribunal in M/S. SUZUKI MOTORCYCLE INDIA PRIVATE LTD. VERSUS C.C. NEW DELHI (IMPORT GENERAL) 2017 (1) TMI 526 - CESTAT NEW DELHI and it was decided in that matter in the similar circumstances, that refund cannot be rejected as time barred and Bench allowed the appeal by remanding the same to adjudicating authority for deciding refund claim if otherwise admissible. This Court is inclined to follow the same decision and particularly emphasizes, there is no ambiguity as such in the notification as the statutory provision as that contained in Section 27 (1B) (C) is very clear as to what is the date of payment to be reckoned when provisional assessment has been resorted to. The appeals are allowed with the direction to original authority to consider the refund claim expeditiously. The Original authority may consider admissibility as per law, but not the reading of new any facts and issues, at this belated stage.

Summary

Issues Involved:
The issues involved in this case pertain to the interpretation of Customs Notification No. 102/2007 dated 14 September, 2007 regarding the refund of Special Additional Duty (SAD) under Section 27 of the Customs Act, 1962. The main contention is whether the one-year period for filing refund claims should be reckoned from the date of provisional duty payment or from the date of final assessment and duty payment.

Issue 1 - Interpretation of Customs Notification:
The appellant filed refund applications against Bill of Entries provisionally assessed for claiming refund of SAD under Customs Notification No. 102/2007. The department rejected the claims stating that refunds should have been filed within one year of payment of duty, even if paid provisionally. The appellant argued that the one-year period should be calculated from the date of final assessment and duty payment, not from the date of provisional payment. The Tribunal referred to the case of Suzuki Motorcycle India Pvt. Ltd Vs. C.C. (Import & General), New Delhi, where it was held that the time limit for filing refund claims in case of provisional assessment is from the date of adjustment of duty after final assessment, not from the date of provisional payment.

Issue 2 - Compliance with Notification Requirements:
The Tribunal observed that Notification No. 102/2007-Cus. dated 14 September, 2007 stipulated that the importer must file a refund claim before the expiry of one year from the date of payment of SAD. While most payments were made provisionally, the refund claims were filed before final assessment in some cases, with exceptions where claims were filed within one year from the date of finalization of assessment.

Issue 3 - Interpretation of Board Circular and Precedents:
The learned AR relied on various precedents and Board Circulars to argue that any ambiguity in the exemption notification should be interpreted in favor of the department. Emphasis was placed on interpreting the notification in accordance with the Board Circular that the limitation period should be reckoned from the provisional payment of duty, not the final payment. However, the Tribunal cited the case of Pioneer India Electronics Pvt Ltd Vs. Union of India and held that the statutory provision in Section 27(1B)(C) is clear on the date of payment to be reckoned in cases of provisional assessment.

Judgment:
The Tribunal allowed the appeals, directing the original authority to consider the refund claims expeditiously. It was emphasized that there is no ambiguity in the notification, and the one-year period for filing refund claims should be calculated from the date of adjustment of duty after final assessment. The Tribunal followed the decision in Suzuki Motorcycle India Pvt. Ltd case and emphasized interpreting the notification harmoniously with the statutory provision, disregarding the Board Circular that suggested otherwise. The appeals were allowed without considering any new facts or issues at the belated stage.