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TMI Blog2019 (11) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... U i.e. Completely Built Units) and cleared the same on payment of duty by way of debiting the duty under DEPB scheme. At the time of import, they had paid 4% SAD through TR-6 challan dt.25.10.2007. Subsequently, on sale of the imported cars, they have filed refund of the said 4% SAD amount on 05.11.2008, in accordance with the Notification No.102/07-Cus, dt.14.09.2007. On adjudication, the refund claim was rejected by the Adjudicating authority, observing that the demand, inter alia, barred by limitation. Aggrieved by the said order, they filed appeal before the learned Commissioner (Appeals), who in turn, rejected their appeal, hence, the present appeal. 5. The learned Advocate for the Appellant Shri T. Viswanathan submitted that they have imported 197 nos. CBU Cars against Bill of Entry No.801128, dt.25.10.2007. They have paid the applicable duty including 4% SAD leviable in terms of Section 3(5) of Customs Tariff Act, 1975. It is his contention that as on the date of importation of the said goods, in the relevant Bills of Entry Notification No.102/07- Cus, was applied to effect SAD payment. This notification allows exemption from SAD by way of refund of the same. At the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the imported goods is as had been prevailing at the time of importation. It is his contention that any amendment to such notification after import, cannot be applied prior to the amendment. Further, he has submitted that the judgment of Bombay High Court in the case of CMS Info Systems Pvt. Ltd Vs UoI - 2017 (349) ELT 236 will not be applicable to the present case. He has submitted that in the said case, the Writ Petition was filed challenging the vires of the amending Notification No.93/08-Cus. In that context, the Hon'ble High Court held that the amendment was valid and disposed the Writ Petition accordingly. 7. Per contra, the learned A.R. for the Revenue has submitted that Hon'ble Bombay High Court in CMS Info Systems Pvt. Ltd.'s case, expressing an opinion different from that of Hon'ble Delhi High Court in the Sony India Pvt. Ltd's case, referring to Section 27 of Customs Act, 1962, observed that the period of one year prescribed under Section 27(1) of Customs Act, 1962 cannot be made applicable to all refund claims arising out of and under the Act. It is his contention that in case of conflicting view of different High Courts the judgment of jurisdictional High Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims. Secondly, since imports and payments of relevant customs duty were made when the original notification was in force and the amended notification had no retrospective effect, the appellant before the High Court of Delhi was entitled to refund of special additional customs duty. 31. It is in dealing with the first argument that the observations in Paras 10, 11, 12, 13 and 14 have been relied upon. Then in Para 17, the said High Court holds thus:- "17. Plainly, therefore, Section 27 was understood as not applying to SAD cases, even though it was in the statute book for many years. Yet, with the introduction of the circular and then the notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed with effect from 1-8- 2008 (by notification) became applicable. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. Khemka and Co. (Agencies) Private Ltd. v. State of Maharashtra, (1975) 35 STC 571 and other decisions are authority on the question that in matters which deal with substantive rights, such as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hroughout on the statute book. That is the only provision enabling granting refund of any duty is undisputed. The notification granting exemption and under consideration in the case, enables claiming a refund of duty (SAD) but the power to grant it is in the substantive law. Precisely, that is the case herein. Further, we find that there is an exemption granted and which is conditional. The exemption being conditional, it is not permissible to pick and choose convenient conditions of the exemption notification and leave out those which to parties like the petitioners, appear to be onerous and excessive. We do not see how in the teeth of a clear provision in the exemption notification can the assessee/petitioners before us contend that the exemption notification is valid for everything else but when it comes to period of limitation therein, that is excessive or unfair, unjust and arbitrary. Once the exemption is conditional, then, all the conditions therein have to be complied with. If that provides for refund, but the application in that behalf is to be made within a specified period, then, that cannot be said to be excessive and arbitrary, far from being unfair, unjust and unreaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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