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TMI Blog2018 (11) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... o, the amending Notification No. 93/2008 is arising out of the statute, i.e. Section 25(2A) of the Customs Act, 1962 hence, the findings of the Commissioner(Appeals) that the amendment introducing one year from the date of payment of additional duty as a time to claim the refund thereof is without statutory amendment, is not sustainable rather is opined to be legally erroneous. 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 - appeal allowed - decided in favor of appellant. - Customs Misc Application No. C/MISC/50849/2018 in Customs Appeal No. C/524292018 [DB] - FINAL ORDER NO. 53152/2018 - Dated:- 25-10-2018 - MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Sunil 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. 330/16 dated 08.05.2018 as filed by the Department. 2. Fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby 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 dismissed the Appeal only on the ground of limitation hence the question of law involved herein is still kept open. It is impressed upon that Notification No. 93/2008-Cus dated 01.08.2008 is the Notification amending the Notification No. 102/2007 vide which a time period of one year from the date of payment for the filing of refund claims by an importer has been introduced. Thus, the period for filing the impugned refund claim is clearly of one year. Since the refund claim in question was not filed within the said one year, the original Adjudicating Authority had rightly dismissed the same and the Commissioner(Appeals) has committed an error while allowing the assessee s claim. Order is accordingly prayed to be set aside and Appeal is prayed to be allowed. 5. After hearing, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject 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 paid on the imported goods with the jurisdictional Customs officer. This Notification stands amended vide Notification No. 93/2008 dated 01.08.2008 vide which a time period of one year from the date of payment for filing of refund claims by an importer under the aforesaid Notification was introduced. Commissioner (Appeals) has held that the amendment since introduced for the first time by a Notification but without a statutory amendment, the same cannot prevail. 6. In view of the above discussion, we are of the opinion that the moot question to be adjudicated in the present case is as to whether there is any time limit prescribed by law for filing the refund claim of additional duty of Customs as stands exempted vide the Notification No. 102/2007. No doubt, the said No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of limitation are excluded, it would nonetheless be still open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. This Tribunal in the case of Uttam Sucrotech International Pvt. Ltd. Vs. Union of India 2011 (264) E.L.T. 502 (Delhi) has held that the applicability of the provisions of limitation Act therefore is to be judged not from the terms of limitation Act but by the provisions of the concerned act. The Tribunal has gone to the extent of appreciating that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions even of Section 5 of the Limitation Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 statute is an edict of the Legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the Court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises the difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one s thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey ..... X X X X Extracts X X X X X X X X Extracts X X X X
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