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TMI Blog2015 (6) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 861122 24.9.2010 10635098 27.9.2010 11.02.2013 25,413/- 2. 4372498 17.8.2011 2001785621 18.8.2011 -Do- 53,717/- 3. 5749812 17.1.2012 DEPB Lic. No. 2210012338 22.12.2012 -Do- 2,39,232/- The appellant is aggrieved by the rejection of its refund claim on the ground of limitation. 2. The brief facts are that the importer was required to deposit Special Additional Duty (SAD) in lieu of Sales Tax at the time of import under Section 3(5) of the Customs Tariff Act, 1975. Vide Notification No. 102/2007-Cus dated 14.9.2007, the Central Government in exercise of powers under Section 125, had provided for exemption of SAD on all goods when imported for subsequent sale subject to terms and conditions as follows:- 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled: (a) the importer of the said goods shall pay all duties, including the said additional duty of customs l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not within the time permissible under Board's Circular No. 10/12, where the time is permitted upto 30.6.2012. 2.2 Being aggrieved the appellant had preferred appeal before the Commissioner (Appeals), who vide the impugned order upheld the Order-in-Original rejecting the refund claim holding that the same is time barred vide Notification No. 102/07 read with Notification No. 93/08. Being aggrieved, the appellant is before this Tribunal. 3. The learned Counsel for the appellant urges that the issue of time limit is no more res integra and the same has been considered by the Hon'ble Delhi High Court in the case of Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi - 2014 (304) ELT 660 (Del), wherein the Hon'ble High Court has considered the question of time period of limitation in filing the refund claim, specified in the impugned Notification No. 93/08-Cus, be made applicable with retrospective effect, in absence of the limitation period in the original Notification NO. 102/07-Cus, in respect of goods imported prior to the issue of the impugned notification. The facts in the case of Sony India before Hon'ble High Court were that the appellant had im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of SADC, which is a levy meant to offset any advantage, there is inherent a right to refund, once the importer shows that the goods have been sold or the other taxation incident, i.e. payment of VAT occurs. This duty was imposed as India's response to offset any advantage that importers might secure, by way of a non-discriminatory levy, by importation of goods at cost or prices lower than what could be obtained by domestic manufacturers. A discriminatory tax could not have been levied, given India's obligations as a participant in the WTO and having regard to its treaty obligations. 14. The expression so far as may be in this context, under Section 27 is significant as well as instructive. The levy under Section 3 (5) is conditional upon the Central Government's opinion that it is necessary to counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article.. ; the rate of duty - where more than one levy exists, would be the highest of such rates and the terms of imposition of SADC would be spelt out in the notification. In this case, the regime existing before the notification of 2008 did not specify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out three contingencies when the one year limit applies with modified effect. That provision has the effect of shifting the date from which the refund claim is to be reckoned. All that can be inferred from the term so far as may be would be that specific provisions relating to the mechanism applicable for refund, in the Customs Act, applied; not the period of limitation. The Customs authorities had never understood Section 27(1) as to mean that a one year period of limitation was applicable. Audioplus (supra) and United Chemicals Industries (supra) are both testimony to this. It is the circulars/notifications of 2008 and No. 16/2009 which for the first time harped on the one year period of limitation. Circular No 6/2008 dated 28.4.2008 issued by the CBEC stated that: 4. Time-Limit: 4.1 In the Notification No. 102/2007-Customs, dated 14-9-2007, no specific time - limit has been prescribed for filing a refund application. Under the circumstances, a doubt has been expressed that whether the normal time-limit of six months prescribed in Section 27 of the Customs Act, would apply. In the absence of specific provision of Section 27 being made applicable in the said notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding notification 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. 3.1 The learned Counsel further urges that the Hon'ble High Court has considered the issue and have read down the notification in its observation that the limitation period cannot be prescribed before the claim for refund of crystallizes. Thus, in this view of the matter and the decision of the Hon'ble High Court, the learned Counsel prays for allowing the appeal. 4. The learned AR appearing for the Revenue relies on the impugned order and further relies on the Division Bench order of this Tribunal in the case of Neyveli Lignite Corporation Ltd. Vs. Commissioner of Customs, Madras - 1983 (12) ELT 855 (CEGAT), wherein it was held, the case of refund under Section 27 of the Customs Act, 1962 is a self contained enactment, therefore, any claim for refund of duty must be treated under Section 27 of the Customs Act, which prescribes the period for refund of duty. The customs authority would be right in rejectin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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