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TMI Blog2015 (2) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment and filing of Bill of Entry has taken place prior to the amendment which became effective on 01/08/2008. It is beyond the control of the appellant to file the refund claim within one year from the date of payment for the reason that the goods were detained by the department's Central Intelligence Unit and released on provisional basis after direction of the hon'ble High Court on 17/03/2010. It is also a settled legal position that, wherever any matter is subjudice before any Court any relief arising out of the order of the Court, the period of litigation is excluded for the purpose of computation of limitation. - where duty becomes refundable, as a consequence of any judgment by Court, the one year shall be computed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sold the goods and filed refund claim under Notification 102/2007-Cus in respect of 4% SAD on 15/09/2010. The refund claim of the appellant was rejected on the ground of limitation as the refund claim was filed after 1 year from the date of payment of Customs duty, relying on Circular No. 06/2008-Cus. dated 28/04/2008. Aggrieved with the said order, the appellant approached the Commissioner (Appeals) and the Commissioner (Appeals) dismissed their appeal, upholding the order of the original adjudicating authority. Thus, the appellant is before me. 3. Shri A.K. Singh, learned counsel for the appellant submits that the Bills of Entry were filed on 17/07/2008 and Customs duty was paid on 18/07/2008. At that time, there was no time-limit pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively. At that time there was no time-limit prescribed for filing of refund claims in the Notification 102/2007-Cus. The Notification No. 102/2007 is an exemption Notification from payment of customs duty by way of refund mechanism. The applicability of the Notification is at the time of filing of Bill of Entry and payment of customs duty. The limitation of one year cannot be made applicable in cases where customs duty payment and filing of Bill of Entry has taken place prior to the amendment which became effective on 01/08/2008. The very same issue has been considered by the hon'ble Delhi High Court in the case of Sony India Pvt. Ltd. (supra), wherein it was held as under: 16. Section 27 (1) of the Customs Act prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be dispatched for sale to different parts of the country and that the importer may find it difficult to dispose of the imported goods and complete the requisite documentation within the normal period of six months. Taking into account various factors, it has been decided to permit importers to file claims under the above exemption upto a period of one year from the date of payment of duty. Necessary change in the notification is being made so as to incorporate a specific provision prescribing maximum time-limit of one year from the date of payment of duty, within which the refund could be filed by any person. It is also clarified that the importers would be entitled to refund of duties only in respect of quantities for which the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation must be read down to the extent that it imposes a limitation period. The question of law framed is therefore, answered in favour of the assessee and against the revenue. The appeal accordingly succeeds and is allowed without any order as to costs. 6. From the above judgment, it is settled legal position that the limitation of one year for filing of refund claims under Notification 102/2007-Cus is not applicable in a case where the assessment of Bill of Entry and payment of Customs duty was made prior to issue of amendment Notification No. 93/2008 dated 01/08/2008. 7. In the present case, it is beyond the control of the appellant to file the refund claim within one year from the date of payment for the reason that the goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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