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TMI Blog2018 (6) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No, 102/2007 does not prescribe any time limit for claiming the refund. The original authority will verify and examine the documents and thereafter will decide the refund claims of the appellant - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... for utilizing the recredit granted to such DEPB scrips has lapsed has caused prejudice to the statutory right of the appellant to obtain refund of SAD in terms of Notification No. 102/2007-Customs dt. 14/09/2007 when all essential conditions specified therein have been complied by them. He further submitted that the Notification No. 102/2007 cited supra nowhere specifies that the customs duty paid by DEPB needs to be refunded by way recredit to the same DEPB scrips. He further submitted that the concept of sanction by way of recredit to DEPB scrip was specified in para7,3 of the Circular Noe6/2003 dt 28/04/2008 issued by CBEC and further vide Circular No, 18/2013 dt 29/04/2013, the CBEC has extended the time for sanctioning refund claim for imports made vide DEPB scrips only until 30/06/2013 and utilize such DEPB scrips by 30/09/2013. He further submitted that the sanction of SAD refund by way of recredit to DEPB scrips after withdrawl of DEPB recredit / revalidation provision is not correct when all necessary documents for processing SAD refund claim was made available before withdrawl of DEPB recredit / revalidation provisions (before 30/09/2013) in terms of Circular No, 18/2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuation to the earlier claim and hence, it is within the time limit. 5. On the other hand, the learned AR reiterated the findings of the impugned order and submitted that the CBEC has power to issue circular bringing out a change in the procedure for availing of exemption granted under Notification No. 102/2007. He further submitted that from time to time, circulars have been issued extending the time within which such refund claim can be filed. He also submitted that various circulars were issued to remove ambiguities to streamline the procedures. 6. After considering the submissions of both the parties and perusal of material on record and the various decisions relied upon by the appellant, I find that the issue in nutshell to be decided in all the appeals is whether 4% of the SAD paid through DEPB scrips can be refunded through cash or not. This issue has been considered by the Hon'ble High Court of Delhi in the case of Allen Diesels India Pvt. Ltd. (cited supra) and the Hon'ble High Court after considering all the submissions of both the parties has come to the conclusion that the circular issued by CBEC cannot impose any additional restriction for grant of refund u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. V. Commissioner of Central Excise, 2008 (8) TMI 3-SC = 2008 (229) E.L.T. 641 (S.C.), it was inter alia held that: "A Circular cannot take away the effect of notifications statutorily issued. In fact in certain cases it has been held that the Circular cannot whittle down the exemption notification and restrict the scope of the exemption notification or hit it down. In other words it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed" 18. In Modi Rubber Ltd V. Union of India, 1978 (2) E.L.T. (J127) (Del.), a similar issue was examined and this Court held as under : "Further, it is quite open to the Government to grant an exemption subject to conditions. If the object of the Government in granting an exemption is to benefit the consumer by the reduction of the selling price of the goods, then the Government notification grating the exemption should itself say so, For instance, notification GSR 1089 dated 29th April 1969 expressly stated that the benefit of the exemption was to be available only to those manufacturers who produce proof to the satisfaction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May, 2014 and 20th May, 2014, on the above grounds is held to be bad in law and the said orders are hereby set aside Since the petitioner has fulfilled the conditions set out in Notification No. 102/2007-Customs for availing of the refund, the Department is directed to issue orders granting refund to the petitioner, as prayed for by it in its four refund applications dated 8th October, 2013, 22nd November, 2013, 16th December, 2013 and 21st December, 2014 not later than four weeks from today. The petitioner's entitlement to interest on the amount of refund will also be considered and granted in accordance with law within the same period of four weeks from today. 7. Further I find that some refund claims were held to be time bar because the defect memos were issued and documents were not filed by the appellant in time. The rejection of refund claims on time bar in the present case is not sustainable because only the defect memo was issued and the refund claims were not rejected. Therefore, in view of the judgment relied upon by the appellant in the case of IGP Engineers cited supra, the refund claims cannot be rejected by issuing the defect memo and the refund claims filed ea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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