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TMI Blog2018 (10) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... ne year specified under the above Notification shall not apply until and unless the basic provisions of Section 27 of the Act dealing with refunds are made applicable. Appeal allowed - decided in favor of appellant. - APPEAL NO. C/61217/2018-CU[SM] - A/62972/2018-SM[BR] - Dated:- 12-9-2018 - Mr. S.S. Garg, Member (Judicial) Present for the Appellant(s): Sh. Om Prakash, Advocate Present for the Respondent(s): Sh. Bhasha Ram, A.R. ORDER Per: S.S. Garg The present appeal is directed against the impugned order dt. 21.05.2018 passed by the Commissioner (Appeals), whereby the Commissioner (Appeals) has rejected the refund on time bar and upheld the Order-in-Original. 2. Brief facts of the present case are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent sale from the whole of the additional duty of customs leviable thereon under sub-section (5) of Section 3 of the Customs Tariff Act. It is his further submissions that the refund of the additional duty of customs would become due only on the occurrence of subsequent sale as provided in the Notification and from the subsequent sale of the goods, the refund claim was filed within one year. He further submitted that this issue has been considered by the Hon ble High Court of Delhi in the case of Sony India Pvt Ltd. vs. CC, New Delhi reported in 2014 (304) ELT 660 (Delhi), in which it was held that the time limitation of one year specified under the Notification shall not apply until and unless the basic provisions of Section 27 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. Section 27 was understood as not applying to SAD cases, even though it was in the statute book for many years. Yet, with the introduction of the circular and then the notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed with effect from 1-8-2008 (by notification) became applicable. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. Khemka and Co. (Agencies) Private Ltd. v. State of Maharashtra, (1975) 35 STC 571 and other decisions are authority on the question that in matters which deal with substantive rights, such as imposition of penalties and other pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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