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TMI Blog2019 (12) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... y of SAD that has been exempted vide Notification No. 102/2007-Cus. and 93/2008-Cus. and allowed if claim is made within one year of payment of CST/VAT. The appellants are entitled to refund of SAD on production of proof of VAT/CST payment within a year of their filing application before refund sanctioning authority who is directed to complete the refund process within a period of two months from the date of receipt of this order with due regard to Section 11/BB of the Central Excise Act dealing with interest on delayed refunds - appeal allowed. - Customs Appeal No. 88525 of 2018, 88540 of 2018 - A/87034-87035/2019 - Dated:- 8-11-2019 - HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Shubendu Patnaik, Consultant for the Appellant Shri Dharmendra Singh, Supdt., AR for the Respondent ORDER SUVENDU KUMAR PATI: Rejection of refund claim of Special Additional Duty (SAD) of customs to both the appellants by the refund sanctioning authority and confirmation of the orders-in-original by the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, Mumbai-II in appeal nos. 110/2017 and 480/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Department supported the reasoning and rationality of the order passed by the Commissioner (Appeals) and argued, with reference to the Hon ble Bombay High Court i.e. the jurisdictional High Court s finding given in CMS Info System Ltd that period of one year for refund of SAD is a mandatory requirement which was to be computed from the date of payment of SAD and since it had taken in to consideration the order passed by Hon ble Delhi High Court in Sony India case which is also followed by this Tribunal vide its decision dated 03-06-2019 upholding such rejection order passed by the Commissioner (Appeals) in Associated Chemical Corporation case (Appeal no. C/86673/2018), he sought no interference in the order passed by the Commissioner (Appeals). 5. Heard from both the sides and perused the case record as well as the additional submissions which also contains documentary evidence to the effect that provisional assessment was completed on 27-12-2017. Perused the copy of the confirmation of assessment vide letter of the Asst. Commissioner of Customs in Annexure (6) of the additional submissions. Further going by the OIO and OIA, it can be said that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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 distribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of SAD at the time of import was in the nature of counter balancing the CST/VAT etc., which could be treated at 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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