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TMI Blog2021 (10) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... laims of the assessee is that the DEPB Scheme had lapsed at the time of filing of refund applications after curing the defective applications by the assessee - HELD THAT:- Neither Section 27 of the Act of 1962 nor a notification under Section 25 (1), such as the amended notification in No.93/2008-Cus can be used to impose a limitation period and the right to claim refund. The contention of the Revenue that the period of six months during the relevant period is the period of limitation prescribed under Section 27 of the Act of 1962 for refund of claim as per Notification No.102/2007 is wholly untenable for the reason that the refund of SAD would be claimed by the assessee subsequent to completion of the assessment in many cases, as the SAD would be refundable only on subsequent sale which is not in the control of the assessee. Merely for the reason that DEPB Scheme has lapsed, the assessee cannot be deprived of the benefit flowing from the exemption Notification No.102/2007 if the conditions specified therein are fulfilled. If the DEPB Scheme has lapsed, notwithstanding 4% SAD paid through DEPB scrips, the assessee is entitled to the benefit of exemption N/N. 102/2007 by claimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals). The said appeals came to be rejected on the ground that 4% SAD amount paid through DEPB scrips cannot be refunded by cash, against which appeals were preferred by the assessee before the CESTAT, whereby the said appeals were allowed, placing reliance upon the ruling of the Hon ble High Court of Delhi in the case Allen Diesels India Pvt. Ltd. .v. Union of India and Others (2016 [334] ELT 624 [DEL]). Aggrieved by the said common order passed by the Tribunal dated 30.5.2018, the Revenue has preferred this appeal. 5. Learned counsel for the Revenue argued that the Tribunal grossly erred in following the ruling of the Hon ble Delhi High Court in the case of Allen Diesels (supra) which is not applicable to the facts of the present case. Referring to circular No.6/2008 issued by the Central Board of Excise and Customs, he submitted that on the issue of 4% SAD paid through DEPB scrips, the issue as to whether refund could be paid by cash, was considered by the said Board and it was clarified that instead of refunding the duty in cash, the amount eligible for refund should be re-credited on the relevant DEPB scrip. The same having been followed by the authorities, the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities have rejected the same on the ground that DEPB Scheme had lapsed at the time of filing of the refund applications, or the defective applications were cured subsequent to lapsing of the DEPB Scheme. Considering these aspects, learned counsel submitted that the Tribunal rightly allowed the appeals filed by the assessee which deserve to be confirmed by this Court by answering the substantial questions of law against the revenue and in favour of the assessee. 9. We have carefully considered the rival submissions of the learned counsel for the respective parties and perused material on record. Re: Substantial question of law No.1 10. Notification No.102/2007-Cus issued by the Central Government exercising the power under sub- section (1) of Section 25 of the Customs Act,1962 reads thus: Special CVD-Exemption to all goods when imported for subsequent sale: In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1952 (52 of 1962), the Central Government on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EPB Scrip, whether refund could b paid by cash, it is clarified that instead of refunding the duty in cash, the amount eligible for refund should be re-credited on the relevant DEPB Scrip. Further, Circular No.10/2012-Cus dated 29.3.2012 was issued extending the time up to 30.6.2012 for refund of 4% CVD (SAD) in re-credited DEPB scrips/Reward Scheme scrips. Further, by issuing Circular No.18/2013-Customs dated 29.4.2013, the time limit was extended up to 30.9.2013 for refund of 4% of CVD (SAD) in re-credited DEPB scrips/Reward Scheme scrips. 12. The assessee had filed refund applications for the period August 2009 to June 2011, the details of which are as under: Sl.No. Period Refund claimed Amount rejected for paying the duty through DEPB scrips (Rs.) Amount rejected for other reasons (Rs.) 1. June 2010 3,78,969 1,12,245 19,009 2. November 2010 4,32,596 3,63,688 68,908 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,11,133 13. Indisputably, in Notification No.102/2007-Cus dated 14.9.2007, no time period was mentioned for claiming the refund under the said notification. By virtue of the amendment notifications and Circular Nos.6/2008, 10/2012 and 18/2013 issued by Central Board of Excise and Customs, additional restrictions were imposed for availing the exemption. 14. While considering the scope and effect of such circulars and notifications, the Hon ble High Court of Delhi in the case of Allen Diesels, placing reliance on the judgment of the Hon ble Apex Court in the cases of Sandur Micro Circuits Ltd. v. Commissioner of Central Excise (2008 (229) ELT 641 [SC] and Pioneer India Electronics (P) Ltd. .v. Union of India (2014 (301) ELT 59 [Delhi]), has held that the said circulars are invalid. 15. In the case of Sandur Micro Circuits Ltd., (supra), the Hon ble Apex Court has held thus: A Circular cannot take away the effect of Notifications statutorily issued. In fact in certain cases it has been held tat the Circular cannot whittle down the Exemption Notification and restrict the scope of the Exemption Notification or hit it down. In other words, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court would not be a ground for the Revenue to challenge the order of the Tribunal on the premise that Allen Diesels (supra) is not a good law. Indeed, the view taken by the Hon ble High Court of Delhi was fortified by the judgment of the Hon ble Apex Court in the case of Sandur Micro Circuits Ltd. supra. 19. It is well settled that the circular instructions which are administrative in nature cannot efface the effect of the statutory exemption notifications issued. After granting exemption subject to certain conditions, new conditions cannot be introduced by administrative directions or guidelines contrary to the statutory notification or restricting or withdrawing the benefits or imposing strict conditions. Thus, we have no reasons to differ from the view expressed by the Hon ble High Court of Delhi in the case of Allen Diesels (supra). As such, no exception can be found with the Tribunal relying on the said ruling. Re: Substantial question of law No.2 20. The main ground for rejecting the refund claims of the assessee is that the DEPB Scheme had lapsed at the time of filing of refund applications after curing the defective applications by the assessee. At this ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers (2011) 10 SCC 292 has been referred to. It has been observed that it is obligatory on the part of the Revenue to intimate the assessee to remove the deficiencies in the application and in any event if there are still deficiencies, it should proceed with adjudication and reject the application for refund. The adjudicatory process, by no stretch of imagination can be carried on beyond 3 months. Even assuming that a defective refund application was filed by the assessee, the Revenue was required to intimate the assessee to remove the defects within a short period by issuing notice, or else, could proceed with, to reject the claim for non-compliance of objections. Such an exercise not having been done, allowing the assessee to cure the defects and thereafter, rejecting the claim on the ground that DEPB Scheme has lapsed, cannot be appreciated. Thus we are of the considered opinion that Section 27 of the Act of 1962 and Notification No.93/2008-Cus would not be applicable to the facts of the present case. Re: Substantial Question of Law No.3 22. In view of the discussions made herein above, if the DEPB Scheme has lapsed, notwithstanding 4% SAD paid through DEPB scrips, the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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