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TMI Blog2018 (12) TMI 1487X X X X Extracts X X X X X X X X Extracts X X X X ..... E Dated TR-6 Dated Amount of SAD Paid Amount of Refund Claimed 1. 9788/16 6002 31.03.2017 4107213 01.02.16 09.02.16 47471.20 47471 Total 47471.20 47471 The Assistant Commissioner vide order No. 5230 dated 08.09.2016 has rejected the said claim on the ground that the same has been filed after the prescribed time limit of one year from the date of payment and as such is rejected as being 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on a like article on its sale, purchase or transportation in India" means the sales tax, value added tax, local tax or other charges for the time being in force, which would be leviable on a like article if sold, purchased or transported in India or, if a like article is not so sold, purchased or transported, which would be leviable on the class or description 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 Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereof is without statutory amendment, is not sustainable rather is opined to be legally erroneous. Otherwise also, the said amendment came into force w.e.f. 01.08.2008 that too in accordance of another statutory provision, i.e. Section 25(4) of the Customs Act. The refund in question was filed on 31.03.2017, i.e. much beyond the amended Notification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second class. The form given by the statue must be adopted and adhered to." In still another case titled as Munshiram Vs. Municipal Committee Chheharta SSC page 88 para 23, the Hon'ble Apex Court held that when a Revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, 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 Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed..." It was also held that the well settled principle is that when the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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