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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 ..... committed an error while giving an expanded interpretation qua limitation to favour assessee - appeal allowed - Claim of refund rejected. - Customs Stay Application No. C/Stay/50853/2018 in Customs Appeal No. C/52436/2018 [DB] - FINAL ORDER NO. 53154/2018 - Dated:- 25-10-2018 - Mr. C.L. Mahar, Member (Technical) And Mrs. Rachna Gupta, Member (Judicial) For the Appellant : Mr. Rakesh Kumar, DR For the Respondent : None ORDER PER: RACHNA GUPTA Present is an Appeal against the Order of Commissioner of Customs (Appeals) bearing No. 596/17 dated 03.05.2018 as filed by the Department. 2. Facts relevant for the purpose are that the assessee, M/s Nav Bharat Trading Corporation herein had filed a refund claim under special refund mechanism as provided for under the exemption Notification No. 102/2007-Cus dated 14.09.2007 (herein referred to as the said Notification) for an amount of ₹ 47,471/-. The claim is with respect to special additional duty of Customs (SAD) leviable under sub-section 5 of Section 3 of Custom Tariff Act, 1975 (herein after referred to as the Act) the details of refund are as follows: S. No Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar. 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 of the opinion as follows:- The claim herein is with respect to special additional duty of Customs as leviable under Section 3(5) of Customs Tariff Act, 1975. It is important to look into the said provision which reads as follows: Section 3 Levy of additional duty equal to excise duty, sales tax, local taxes and other charges (1) -------- (2) -------- (3) -------- (4) -------- (5) If the Central Government is satisfied that it is necessary in the public interest to levy on any imported article [whether on such article duty is leviable under sub-section (1) or, as the case may be, sub-section (3) or not] such additional duty as would counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India, it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 Notification is silent about any time period for filing the said claim. But the Notification exempts the goods in first schedule of Customs Tariff Act from being leviable to the additional duty of Customs. However, the Notification itself mandates the deposit of the said additional duty at the time of importation of the goods and thereafter to get the refund. From this perusal, one thing becomes abundantly clear that the importer has the knowledge of his entitlement to file the refund of additional duty of Customs at the time of the payment of said duty itself i.e. at the time, the product being in first schedule (under the exempted category) is imported. Resultantly, we are of the opinion that 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. To our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Hon ble Apex Court in the case Naseeruddin Vs. Sitaram Aggarwal A.I.R. 2003 (S.C.)1543 has held that in the absence of statutory provisions, no inherent powers of the court exists to condone the delay. It was also held that a statutory right has to be exercised in the mode, manner and limitation specified in the special statute itself. The Hon ble Apex Court in an earlier decision in the case of Titaghur Papermills Company Ltd. Vs. State of Orissa SCC PP 440-41 para 11 has held: 11. it is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. Vs. Hawkesford in the following passage: (ER p. 495) There are three classe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a meaning which may be obscure. It is impossible even for the most imaginative Legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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