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TMI Blog2018 (3) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... 870 - DELHI HIGH COURT] has held that Merely because a condition is imposed to file a refund application within a stipulated time limit, it cannot be held to be onerous, excessive and, therefore, ultra vires Article 14 of the Constitution - appeal dismissed - decided against appellant. - Appeal No. C/10143/2018 - Order No. A/10482 / 2018 - Dated:- 26-2-2018 - Dr. D. M. Misra, Hon'ble Member ( Judicial ) For the Appellant : Shri H. D. Dave, Advocate For the Respondent : Shri S. N. Gohil, AR ORDER Per : Dr. D. M. Misra This is an appeal filed against order-in-appeal No. MUN-CUSTM-000-APP-202-17-18 dated 04.10.2017 passed by Commissioner (Appeals) of Customs, Ahmedabad. 2. The appellant had filed refund applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sony India Pvt. Ltd. s case (supra) observed that the period of one year prescribed under said Notification of 102/2007-Cus. as a condition precedent to avail the exemption is required to be fulfilled to avail the benefit of exemption. Therefore, filing the refund application after one year from the date of import as prescribed under the said Notification is barred by limitation. 5. Heard both the sides and perused the records. 6. The short issue involved in the present case is whether the refund claim of ₹ 12,19,989/- filed pursuant to the exemption Notification 102/2007-Cus dated 14.09.2017, on 03.08.2016 for imports made and duty paid June 2015 to July 2005 is barred by limitation. The Hon ble Bombay High Court after anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a limitation for seeking refund apart, section 27 with its condition of a limitation period was throughout on the statute book. That is the only provision enabling granting refund of any duty is undisputed. The notification granting exemption and under consideration in the case, enables claiming a refund of duty (SAD) but the power to grant it is in the substantive law. Precisely, that is the case herein. Further, we find that there is an exemption granted and which is conditional. The exemption being conditional, it is not permissible to pick and choose convenient conditions of the exemption Notification and leave out those which to parties like the petitioners, appear to be onerous and excessive. We do not see how in the teeth of a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right in the petitioners to seek refund. Even a refund must be within the framework of the statute and admissible on the terms thereof. We are not inclined to agree with him that compliance with this period is calling upon the petitioner to do or perform something which is impossible. The exemption Notification does not impose any new condition as has been read into it. It grants the exemption from payment of duty conditionally. The exemption can be availed of provided the goods which are imported are subject to payment of duties which include all the duties that are referred to in both the enactment and the notification. If the import is for subsequent sale, then, that invoice must carry a stipulation that no credit for the additional du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greatest respect, if the exemption can only be claimed within the statutory provisions and not beyond the same, such conditional exemption including the stipulation as above has not been challenged. Only one condition therein cannot be declared ultra vires because the petitioners desire to brush it aside. The petitioners have accepted the position that if this exemption Notification had not been issued in exercise of the statutory power, no exemption could have been claimed at all. In these circumstances, merely because a condition is imposed to file a refund application and which is in the nature of a timebar or limitation, that cannot be held to be onerous, excessive and therefore ultra vires Article 14 of the Constitution. 35. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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