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TMI Blog2021 (12) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... ng refund in terms of the Notification, the same limitation has to be applied. The Hon ble Delhi High Court has also held that in the matters which deal with substantive rights, such as imposition of penalties and other provisions, that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or Rules cannot prevail, or be made in such case. The appeal filed by the appellant is allowed - decided in favor of appellant. - Customs Appeal No. 50767 of 2021-SM - FINAL ORDER NO. 52085/2021 - Dated:- 10-12-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Somnath Vasisht Sh. Ram Avtar Sharma, C.A. for the appellant Ms. Tamanna Alam , Authorised Representative for the respondent ORDER The issue involved in this appeal is whether the refund claim of Special Additional Duty (SAD), which is in lieu of sales tax, have been rightly rejected as time barred, by the Court below. 2. The appellant is an importer and thereafter resells the goods. At the time of import of goods the appellant is required under the Customs Tariff Act to deposit- (i) customs duty, (ii) additional duty (which is in lieu of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Commissioner (Appeals) observed that the ruling in the case of Sony India was pronounced with respect to retrospective effect of amendment by Notification No. 93/2008-Cus. The Delhi High Court examined the retrospective applicability of the amending notification. Hence, the ruling of Delhi High Court in the case of Sony India (supra) is not applicable in the facts of the present case. He further placed reliance on the following rulings: i) CMS Info System Ltd.,-2017 (349) ELT 236 (Bom-HC.) ii) R.M. Impex Pvt. ltd.-2020-TIOL-1271-CESTAT-Del. iii) CC, Hyderabad vs. Surya Telecom Pvt. Ltd., (Appeal No. C/31110-31111/2017 decided on 02.07.2018). wherein the ruling of Delhi High Court in the case of Sony India has been distinguished, and it has been held that time limit of one year from the date of deposit of SAD will apply, as provided in Notification No. 93/2008-Cus. 5. Being aggrieved, the appellant is before this Tribunal inter alia on the ground that it is a matter of common sense, that unless right accrues to claim refund, limitation cannot start. He also relies on the decision of Delhi High Court in Sony India and states that the views of Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions under the Customs Act are inapplicable to the duties levied under Section 3(5) of the CTA. Thus, neither Section 27 nor a notification under Section 25 (1), such as the amending Notification No.93/2008-Customs dated 1.8.2008, can be used to impose a limitation period on the right to claim refund of additional duty of customs paid under Section 3(5). If a limitation period is sought to be imposed in respect of refund claims in a case where the importer advances a refund of SAD paid, owing to having incurred sales tax/VAT liability on subsequent sale of goods, it must be introduced by legislation, given the ex propriatory consequences of such a limitation period. (iii) The expression so far as may be in this context, under Section 27 is significant as well as instructive. The levy under Section 3(5) is conditional upon the Central Government s opinion that it is necessary to counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article ; the rate of duty where more than one levy exits, would be the highest of such rates and the terms of imposition of SAD would be spelt out in the notification. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the said Act and the Rules and Regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties shall, so far as may be, apply to the duty chargeable under this Section as they apply in relation to the duties leviable under that Act. (ii) Though the CTA enables the levy of the Additional duty equal to excise duty, sales tax, etc., eventually, it is an Act to consolidate and amend the law relating to customs duty. The duties which are levied have then to be specified and for effective and proper recovery. Even when there is any claim made for drawback, refund and exemption, it is the substantive law, namely, the Customs Act, 1962, which would govern the field. Else no refund can be claimed. (iii) The decision of the Hon ble High Court of Delhi holding that the provisions of the Customs Act or the rules and mechanism for refund are incorporated by reference to Section 3(5) of the CTA only so far as may be applicable and since SAD is levied under Section 3(5), and that is refundable only on subsequent sale, then, no limitation period can possibly be imposed for advancing a refund claim, cannot be agreed with in the light of the ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in its ambit and scope, then, an application seeking refund of the same has to abide by it, including the bar of limitation contained therein. That is consistent with that provision, even the special exemption notification (as amended) carries the same stipulation or condition. The insistence on complying with it cannot be said to be imposing an unreasonable, unfair and unjust restriction. Once the nature of the right is considered, the submissions made by Mr. Patil/petitioner cannot be agreed with. There is no vested, much less absolute right in the petitioners to seek refund. Even a refund must be within the framework of the statute and admissible on the terms thereof. The submission of Mr. Patil that compliance with this period is calling upon the petitioner to do or perform something which is impossible, cannot be agreed with. The exemption notification does not impose any new condition as has been read into it. It grants the exemption from payment of duty conditionally. The exemption can be availed or provided the goods which are imported are subject to payment of duties which include all the duties that are referred to in both the enactment and the notification. If the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value added tax, local tax or any other charges for the time being leviable on a like article, ; the rate of duty where the terms of imposition of SAD would be spelt out in the notification. The regime existing before the notification of 2008, did not specify any period of limitation and perhaps advisedly so. Some customs authorities apparently started applying Section 27, drawing inspiration from Section 3(8) of Tariff Act, which lead to confusion. In Notification No. 102/2007-Cus., dated 14.09.2007, there was no prescribed period of limitation; by Circular No. 6/2008-Cus., period of one year was insisted and thereafter an amending notification providing for one year period from the date of payment of the additional duty of customs was issued, through Notification No. 93/2008-Cus., dated 1.8.2008, amending Para 2(c) of the 2007 Notification. The net effect of these was that a one year period was insisted upon for refund applications. (3) Section 27(1) of the Customs Act prescribes time limit of expiry of one year , from the date of payment of such duty or interest... . Section 27(1B) lists out three contingencies when the one year limit applies with modified effect. That ..... X X X X Extracts X X X X X X X X Extracts X X X X
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