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TMI Blog2018 (10) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... uty itself i.e. at the time, the product being in first schedule (under the exempted category) is imported - for claiming the refund of additional duty nothing else has to happen or to be done by the asseesse after the payment of said additional duty of Customs. The refund claim of additional duty due to the exemption flowing out of N/N. 102/2007 has to be filed within one year in view of the subsequent N/N. 93/2008-Cus which still holds good and also in view of Section 27 of the Customs Act, 1962 - appeal allowed - decided in favor of Revenue. - Customs Stay Application No. C/Stay/50852/2018 in Customs Appeal No. C/52435/2018[DB] - FINAL ORDER NO. 53156/2018 - Dated:- 25-10-2018 - MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Rakesh Kumar, DR Present for the Respondent: None ORDER PER: RACHNA GUPTA Present is an Appeal against the Order of Commissioner of Customs (Appeals) bearing No. 74/2016 dated 08.05.2018 as filed by the Department. 2. Facts relevant for the purpose are that the assessee, M/s Indu Exporters herein had filed a refund claim under special refund mechanism as provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by time. Being aggrieved, the assessee approached the first appellate authority, i.e. the Commissioner of Customs (Appeals). He, vide the Order under challenge has held that upholding the limitation period starting from the date of payment of duty as prescribed in amended Notification No. 93/2008-Cus would amount to allowing commencement of limitation period for refund claimed before the right of refund has even accrued and that no period of limitation is prescribed under Section 3(5) of the Customs Tariff Act. Accordingly, the Appeal of asseesse was allowed accepting the refund claimed. Department being aggrieved is in Appeal before us. 3. We have heard Shri Rakesh Kumar, Ld. DR for the Department/ appellant. However none is present for the respondent. He therefore hereby proceed to decide the Appeal ex-parte considering defendant. 4. It is submitted that the Commissioner(Appeals) has based his Order on the decision of Hon ble High Court of Delhi in the matter of M/s Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi 2014 (304) ELT 660 (Del.) and though the Appeal whereof even before Hon ble Supreme Court has been dismissed but Hon ble Apex Court has dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of articles to which the imported article belongs and where such taxes, or, as the case may be, such charges are leviable at different rates the highest such tax or, as the case may be, such charge. It is brought to our notice that the said SAD exemption has been granted vide Notification No. 102/2007 dated 14.09.2007 as issued in accordance of Section 25(1) of the Customs Act which provides power to the Central Government to grant exemption from duty by way of Notification. This Notification exempts the goods falling within the first schedule to the Customs Tariff Act, 1975 when imported into India for subsequent sale, from the whole of the additional duty of Customs leviable thereupon in accordance of the above mentioned Section 3(5) of Customs Tariff Act. However, subject to such conditions as mentioned in the Notification itself in para 2 thereof, the first condition reads as follows: (a) The importer of the said goods shall pay all duties including the additional duty of Customs leviable thereon, as applicable at the time of importation of goods. The other relevant condition is: (c) The importer shall file a claim for refund of said additional duty of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and also the Customs Act itself contains a provision about claim of refund of duty in Section 27 thereof which reads as follows:- (i) Any person claiming refund of any duty or interest, paid by him or borne by him may make an application in such form and manner as may be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs before the expiry of one year from the date of payment of such duty or interest. 8. The words used in the provision makes it clear that statute has not distinguished the nature of duty or interest, the refund whereof is claimed. Hence, even if we do not look into the amended Notification No. 93/2008, the period of limitation as applicable for filing the refund claim under Notification 102/2008 will otherwise be a period of one year in accordance of the aforesaid Section 27 of Customs Act. Thus, we cannot rule out that the Notification No. 93/2008 came into existence to align the statutory provision with the Notification which was silent as far as the period of limitation for the purpose as mentioned therein is concerned. Otherwise also, on examination of relevant provision it appears that the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rum, in a particular way, it must be sought in that forum and in that manner and all other forums and modes of seeking said remedy are excluded. Except in the case where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed. Apparently and admittedly none is the fact of the present Appeal. It is also not the case that Notification 93/2008 has been repealed. In absence thereof also, as already discussed above, Section 27 of Customs Act prescribes a period during which refund of any type can be claimed. The Hon ble Apex Court in a recent decision Commissioner of Customs (Import Mumbai) Vs. M/s Dilip Kumar Co. 2018 TIOL 302 (S.C.)-Cus-CB has held that an exemption Notification has to be strictly construed, i.e. if the person claiming exemption does not fall strictly within the letter of Notification, he cannot claim the exemption. The Hon ble Apex Court while relying upon its previous decision in the case District Mining Officer Vs. Tata Iron Steel Company 2001 (7) SCC 358 had noticed as follows:- A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d meaning irrespective of consequences. If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, it was held that if the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In view of entire above discussion, we are of the opinion that the refund claim of additional duty due to the exemption flowing out of Notification No. 102/2007 has to be filed within one year in view of the subsequent Notification No. 93/2008-Cus which still holds good and also in view of Section 27 of the Customs Act, 1962. We therefore hold that the Commissioner(Appeals) has committed an error while giving an expanded interpretation qua limitation to favour assessee. We therefore set aside the said Order and allow the present Appeal rejecting the impugned refund claimed. [Pronounced in the open Court on 25.10.2018] - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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