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TMI Blog2023 (12) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is upheld. The appeal filed by the Revenue is dismissed. - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. RAJEEV TANDON, MEMBER (TECHNICAL) Shri Subrata Debnath, Authorized Representative for the Appellant None for the Respondent ORDER The Revenue is in appeal against the impugned order. 2. The facts of the case are that the respondent imported Sulphuric Acid Brown in bulk and cleared the same for home consumption by paying Customs duty including SAD @ 4%. The duty was paid by DEPB license and cash proportionately. The duty paid towards SAD works out Rs.3,31,931.77. The respondent filed a claim for refund of SAD to the tune of Rs.3,30,837.28 in terms of Notification No.102/2007-Cus dated 14.09.2007 along with all relevant documents. The refund claim to the tune of Rs.98071/- was sanctioned , which is the proportionate SAD amount paid in cash, but the remaining claim was rejected. 2.1 Against the said order, the respondent filed the appeal before the ld. Commissioner (Appeals), who allowed the refund claim of duty paid by way of DEPB scrips. 2.2 Against the said order, the Revenue is before us. 3. Heard the ld. A.R. for the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 102/2007-Customs, would not be in cash but re-credited to the relevant DEPB scrips which were used for making payment of the SAD. However, even this proposed system of re-crediting DEPB scrip was unable to be given effect to. The Director General of Foreign Trade ( DGFT ) which issued the DEPB scrips apparently had no mechanism for re-crediting them through the electronic data interchange ( EDI ) system. 6 . This led to a further Circular No. 27/2010-Customs being issued on 13th August, 2010, where, after noting the issuance of the earlier circulars, it was slated that EDI, at present, does not have facility to register such re-credited scrips issued by DGFT in the system . The C.B.E. C. noted that considering the difficulties in allowing re-crediting of scrips and the view of DGFT that such re-crediting through EDI was not feasible and considering the large scale pendency of refund claims, it decided that registration of the re-credited duty scrips on the basis of consolidated certificate furnished by Customs should be allowed on manual basis . It was further stated : The facility of manual filing of Bills of Entry for utilizing the amount of re-credited CVD refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as the circulars under challenge seek to impose an additional restriction for grant of refund of the SAD under Notification No. 102/2007-Customs, they are ultra vires of the Act and cannot be legally sustained. Consequently, it is declared that the Circular Nos. 6/2008, 10/2012 and 18/2013 issued by the C.B.E. C., insofar as they seek to deny importers and exporters the refund of the SAD paid by using DEPB scrips, are invalid. 21 . The rejection of the petitioner s refund applications by the orders dated 16th May, 2014 and 20th May, 2014, on the above grounds, is held to be bad in law and the said orders are hereby set aside. Since the petitioner has fulfilled the conditions set out in Notification No. 102/2007-Customs for availing of the refund, the Department is directed to issue orders granting refund to the petitioner, as prayed for by it in its four refund applications dated 8th October, 2013, 22nd November, 2013, 16th December, 2013 and 21st December, 2014 not later than four weeks from today. The petitioner s entitlement to interest on the amount of refund will also be considered and granted in accordance with law within the same period of four weeks from today ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion arises whether the above circulars could have been issued restricting the entitlement of the importers and exporters to refund in terms of Notification No. 102/2007-Customs, without the said notification itself being amended. xxx xxx xxx 15. At the outset, the Court notes that Section 151A of the Act is for a very limited purpose of issuing of instructions to officers of customs for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon or for the implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any prohibition/restriction for import or export of goods. The above provision does not envisage any amendment being made to an exemption notification that may have been issued in exercise of powers under Section 25(1) of the Act. An amendment through notification can possibly be brought about only by again exercising the powers under Section 25(1) of the Act. In this very context, it may be noticed that one instance of such amendment is the issuance of Notification No. 93/2008-Customs, dated 1st August, 2008 under Section 25(1) of the Act to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods. Such a condition has to be a part of the exemption notification. For, the notification is law . But, after enacting the law, such a condition cannot be imposed by administrative directions, guidelines or press note. These administrative acts cannot go contrary to the statutory notification . 19. Recently in Pioneer India Electronics (P) Ltd. v. Union of India, 2014 (301) E.L.T. 59 (Del.) it was observed as under : The word exemption as used in sub-section (1) to Section 25 can and should include extension or increase in time but cannot be stretched and expounded to include power of the Government to, by a circular, reduce the statutory time for a claim of refund stipulated under the principal enactment, i.e., the Customs Act, 1962. That would make the circular ultra vires the statute and beyond the scope of the Act, Rules, etc. Circulars might depart from the strict tenure of the statutory provision and might mitigate rigours of law thereby granting administrative relief beyond terms of the relevant provisions of the statute, but the Central Government is not empowered to withdraw benefits or impose harsher or stricter conditions than those postulated by the st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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