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TMI Blog2019 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... so that the movement they sale it up in the domestic market, they will pay CST/VAT accordingly and get back the SAD already paid, by way of refund. Amended sub-para (c) of para 2 which stipulated the time period to filed claim of refund as one year from the date of payment of said additional duty of Customs should be read as effective payment of additional duty of Customs by way of CST/VAT as the purpose of payment of SAD at the time of import was in the nature of counter balancing the CST/VAT etc. which could be treated as par with security - Such stipulation of time frame is meant for payment of CST/VAT which was realised against counter balance by way of payment of SAD, the same period of one year is to be computed from the date of payment of CST, VAT etc., upon sale of goods. It is a settled principle that Tribunal being creature of statute, cann t go beyond the provisions of law but there is no impediment on the part of the Tribunal to read into the law to provide meaning and Charity to the provisions of law for the purpose of making it virtually implementable. The appellant refund claim is to be reassessed on the basis of date of payment of CST/VAT etc. that was earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2017 (349) ELT 236 (Bom.)], a contradictory finding is made with reference to Hon'ble Delhi High Court judgement. He further submitted that judicial discipline dictated that the judgement of Hon'ble Delhi High Court should have been followed by the Hon'ble Bombay High Court as M/s Sony India Ltd. (supra) judgment has attained finality in view of dismissal of SLP, the Tribunal is bound by the precedent to follow the same proposition of law in allowing the appeal by holding that such limitation of one year is inapplicable to said refund. 4. In response to such submissions, learned Authorised Representative for the respondent-department Mr. Manoj Kumar, Assistant Commissioner has submitted that reasoned finding is given by the Hon'ble Bombay High Court after taking into account the reasoning and rationality of the order passed by the Hon'ble Delhi High Court in the case of M/s Sony India Ltd. (supra) and this Tribunal being subjected to the jurisdiction of Hon'ble Bombay High Court is bound by the principle of stare decisis in view of decision of CESTAT, Delhi reported in 2016 (45) STR 143 (Tri.-Del.) in the case of Bird Travels (P) Ltd. Vs. CCE, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S on sale of such imported goods, for which SAD was paid. Sub-para (c) was amended by way of Notification No. 93/2008-Cus. dated 01.08.2008 where such refund claim before the jurisdictional Customs Officer was stipulated to be filed before the expiry of one year from the date of payment of the said additional duty of Customs. 7. Dispute concerning such fixation of one year time period to claim refund had reached the Hon'ble Delhi High Court through petition of M/s Sony India Ltd. and in the above referred judgment, it was observed by the Hon'ble High Court that the reason behind fixing of such time frame was that some field formation authorities invoked Section 27 of the Customs Act, where normal time limit of six months was prescribed to claim refund and considering the fact that goods imported will have to be dispatched for sale even to different parts of the country which the importers may find difficult to dispose of soon and complete the requisite documentation within the normal period of six months, above exemption up to a period of one year from the date of payment of duty had been necessitated, apparently in the public interest. Ultimately, Hon'ble Delhi High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to determine ourselves, this issue; namely, continuation of proceedings pending at the time of the respective amendments, and adopting the view of Madhya Pradesh High Court as enunciated in Gwalior Rayon case (supra), we hold that these proceedings can continue, which view a Bench of this Tribunal already expressed, without much controversy having been raised in the case of Carew Co. Ltd. v. Collector of Central Excise, Allahabad (1983 E.L.T. 1186) (CEGAT). Another Bench of this Tribunal (NRB) also held similarly in case : Sri Ram Pistons and Rings Ltd. v. C.C.A., Meerut (1980 E.L.T. 927). In view of the above proposition of law said by the Tribunal follow judicial precedent the freedom to consider judgments holding conflicting views given by different High Court is available with the Tribunal to see for itself as to which authority would apply fully and halfly to the facts of a given case, to be decided by the Tribunal. 8. A cursory reading of the Notification No. 102/2007-Cus. and Notification No. 93/2008-Cus. would clearly reveal that in the public interest, such notifications were made by the Government of India and as discussed earlier, SAD was made applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f para 2 which stipulated the time period to filed claim of refund as one year from the date of payment of said additional duty of Customs should be read as effective payment of additional duty of Customs by way of CST/VAT as the purpose of payment of SAD at the time of import was in the nature of counter balancing the CST/VAT etc. which could be treated as par with security. I am constrained to borrow this analogy as in the CMC Info System Ltd. (supra) judgment, Hon'ble Bombay High Court had expressed its apprehension that it was not possible to guess as to whether refund application would be held to be not maintainable purely on the ground that condition like sale of the said goods on payment of appropriate of Sales Tax or Value Added Tax was not made. Going by the Board Circular No. 16/2008 which stipulates three months time period of processing of such refund, sale of goods and payment CST/VAT etc. being condition precedent to file refund claim, no incomplete refund application could have ever been entertained by the respondent-department as unusual to its prevailing practice. Any such application could be considered as not maintainable when such stipulation/condition is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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