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TMI Blog2019 (10) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (5) of Section 11B of the Central Excise Act, 1944 wherein time frame is stated to have run from the date on which refund is held to be payable, I am of the firm opinion that 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 clarify to the provisions of law for the purpose of making it virtually implementable. The refund application being filed within one year of such payment of sales tax i.e. on dated 16.03.2016, the same is to be treated to have been claimed within the period of limitation as contemplated in the amended Notification No. 93/2008-Cus. and the said refund is therefore to be allowed by the jurisdictional refund authority. The appeal modified to the extent of allowing refunds of SAD paid against three Bills of Entry dated 29.10.2014, 17.10.2014, 17.11.2014 except refund of the amount against which VST/CST was paid on 20.10.2014 - appeal allowed in part. - Customs Appeal No. 86914 of 2018 - FINAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l taken into consideration the decision of Hon'ble Delhi High Court pronounced in the case of M/s Sony India Ltd. (supra) while giving such a finding. He further argued with reference to the decision of Hon'ble Supreme Court of India in the case of East India Commercial Co. Ltd., Calcutta Vs. Collector of customs, Calcutta reported in 1983 (13) ELT 1342 (SC), that Tribunal over which Hon'ble High Court has superintendence cannot ignore law declared by that Court. Further, he has drawn attention of this Bench to other decisions of Hon'ble High Court of Bombay in the case of CC NS-III Vs. DSM Sinochem Pharmaceuticlas (I) Pvt. Ltd. reported in 2018 (359) ELT 509 (Bombay) and this Tribunal pronounced on 03.06.2019 in the case of M/s Associated Chemical Corporation Vs. Commissioner (Appeals), Mumbai-II wherein such refund claims were rejected basing on the decision pronounced in CMS Info System Ltd. (supra) for which he stated that interference by the Tribunal in the order passed by the Commissioner (Appeals) is uncalled for. 5. Perused the case record, the judgments referred by the adversaries and the order passed by the Commissioner (Appeals). Before delvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court rejected that time frame inclusion notification on the ground that subordinate legislation on goods cannot prevail over statutory substantive rights. On the contrary, Hon'ble Bombay High Court in the case of CMC Info Systems Ltd. (supra), hold a finding that when the exemption is conditional all the conditions therein have to be complied with and the appellant cannot say one of those conditions as excessive, arbitrary, unjust or unreasonable, which did not suit it. As a matter of judicial discipline and in conformity to the rule of precedent, the finding of the jurisdictional Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. v. C.C.A., Meerut (1980 E.L.T. 927). In view of the above proposition of law laid by the Larger Bench of the Tribunal on judicial precedent to be followed, 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 aptly 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 to counter balance CST/VAT and create a level playing field for domestic goods so that price difference between the locally manufactured goods and imported goods would not put the local manufacturer in a disadvantageous position. Admittedly CST, VAT are collected for distribution among the States, for which it is difficult to understand why SAD is introduced as a counter balance. It appears that only to maintain the price equilibrium, SAD has been introduced as a precautionary measure to provide coverage to indigeno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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 for processing of such refund, sale of goods and payment of CST/VAT etc. being condition precedent to file refund claim, no incomplete refund application could have ever been entertained by the respondent-department as the same is unusual to its prevailing practices. Any such application could be considered as not maintainable being premature when such stipulation/condition is not met. Therefore, with respectful regards to the findings of the Hon'ble Delhi High Court and Hon'ble Bombay High Court on the issue regarding legality of the prescribed time period to file refund which was challenged and answered, and having regard to the definition of relevant time given in Explanation (3) of Sub-Section (5) of Section 11B of the Central Excise Act, 1944 wherein time frame is stated to have run from the date on which refund is he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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