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TMI Blog2018 (11) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 2016 and accordingly paid the Customs duty including SAD totaling to Rs. 21,07,738/- (Rupees Twenty One Lakhs Seven Thousand Seven Hundred and Thirty Eight only). Subsequently they filed refund claim on 17.11.2017 seeking refund of SAD in terms of Notification 102/2007 dated 14.09.2007. The said refund claim was rejected by the Assistant Commissioner of Customs, Mangalore vide Order-in-Original No. 151/2017-18 dated 29.12.2017 as being hit by limitation. Aggrieved by the said order, the respondent filed appeal before the Commissioner of Customs (Appeals) who vide Order-in-Appeal No. 222/2018 dated 08.06.2018 set aside the order of the original authority and allowed the appeal with consequential relief. Aggrieved by the said order, Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Delhi High Court in the case of Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi reported in 2014 (304) E.L.T. 660 (Del.) wherein it was held that SAD is refundable only on subsequent sale i.e. the point at which Sales Tax/VAT liability arises, no limitation period can be imposed for filing refund claim. Learned counsel further submitted that the Sony India Pvt. Ltd. decision has been upheld by the Hon'ble Supreme Court. He also submitted that subsequently Delhi High Court in the case of Commissioner of Customs Vs. Gulati Sales Corporation reported in 2018 (360) E.L.T. 277 has also relied upon the decision of Sony India Pvt. Ltd. and held that no time limit can be prescribed for the refund of SAD. Learned counsel further sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs of the Delhi High Court in the case of Sony India Pvt. Ltd. wherein the Hon'ble High Court has held as under: "12. The provisions of the Customs Act on the rules and mechanism for refund is incorporated by reference into the CTA only "so far as may be" applicable. Since SADC levied under Section 3(5) is refundable only on subsequent sale (i.e. the point at which sales tax/VAT liability arises),' it is the opinion of this Court that no limitation period can possibly be imposed for advancing a refund claim. This is because the right to claim refund only accrues to the importer once sale, an entirely market driven event, is complete. Given the vagaries of the market, the importer has limited control over when the sale is complete. To upho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, once the importer shows that the goods have been sold or the other taxation incident, i.e. payment of VAT occurs. This duty was imposed as India's response to offset any advantage that importers might secure, by way of a non-discriminatory levy, by importation of goods at cost or prices lower than what could be obtained by domestic manufacturers. A discriminatory tax could not have been levied, given India's obligations as a participant in the WTO and having regard to its treaty obligations. 14. The expression "so far as may be" in this context, under Section 27 is significant as well as instructive. The levy under Section 3(5) is conditional upon the Central Government's opinion that it is necessary to "counter-balance the sales tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure was to be followed in Foreign Exchange Regulation Act proceedings, by virtue of Section 37(2) of that Act. It was held, crucially that: "The submission that Section 165(1) has been incorporated by pen and ink in Section 37(2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Section 37(1). If Section 165(1) was to be incorporated by pen and ink as sub-section (2) of Section 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the CrPC relating to searches shall apply to the searches directed or ordered under Section 37(1) except that the power will be exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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