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TMI Blog2024 (2) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... ar to deny the substantial benefit of refund only on a procedural requirement when it is silent towards such issues like that in case of the Appellant. The scope of benefit entailed under a Notification cannot be curtailed solely based on the claims as made in the present case. It would render the effectiveness of a Notification redundant when all other essential conditions required for the said purposes have been adhered with which in the present case has been complied with by the Appellant. The intent of the Notification has been given priority over the executive application of a Circular. Thus, we are of the considered view that the benefits under Notification No.102/2007-Customs should not be denied to the Appellant thereby the Appellant is entitled for refund claim. Hence, the impugned order is set aside. Appeal is allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri Viany Sejpal , Advocate for the Appellant Shri A R Kanani , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR Brief facts of the case are that the Appellant M/s Hamilton Houseware Pvt. Ltd is engaged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 11.04.2014 read with corrigendum dated 25.04.2014 and without challenging any of the above orders the refund so granted should not be considered as erroneous. He has referred the following cases in support of his claim. Paro Food Products v Commissioner of Central Excise, Hyderabad 2005 (184) ELT 50 (Tri. Bangalore) Topland Engg. (P) Ltd. v Union of India 2006 (199) ELT 209 (Guj.) Union of India v Kamlakshi Finance Corporation Ltd. 1991 (55) ELT 433 (SC) 3. Shri A.R. Kanani, Learned Superintendent (AR) appearing on behalf of the Department has reiterated the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. We find that the lower authorities have raised their contention based on the violation of condition as laid down in para 4.2 of the CBEC Board Circular No. 06/2008 Cus dated 28.04.2008 by the Appellant. The same has been reproduced below for ease of reference:- 4.2. It is also clarified that only a single claim against a particular Bill of Entry should be permitted to be filed within the maximum time period of one year. Filing of refund claim for a part quantity in a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular issued in exercise of executive powers. It is well settled law that the procedural restrictions imposed by way of executive instructions should not ordinarily be construed as mandatory and the same would always remain subservient to and are in aid to justice. It is well settled that interpretation which eludes or frustrates recipient of justice is not to be followed. It seems that the said procedural relevance stand issued by the Board for the purpose of convenience and easy administration of justice for deciding the refund claims. b) A similar stance was taken in the case of M/s Ambey Sales v Commissioner of Customs, Ludhiana 2021 VIL 199 CESTAT - DEL 14. After going through the above provisions and the decision of Hon'ble Apex Court in the case of CC (Preventative) vs. M. Ambalal Co. reported in 2011 (2) SCC 74 - 2010-VIL-31-SC-CU. The Hon'ble Supreme Court has examined the issue and observed asunder: - The relevant paras of the said judgement are extracted below for the purpose to decide the issue in hand:- 10. The Customs Act, 1962 is an Act to consolidate and amend the law relating to Customs. The object of the Act is to regulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own wrong or to impair one's own objections under a Statute should be disregarded. The interpretation should as far as possible be beneficial in the sense that it should suppress the mischief and advance the remedy without doing violence to the language. From the wording of the above exemption notification, it is clear that the benefit of the exemption envisaged is for those goods that are imported. 15. As per the said observations made by the Hon'ble Apex Court, the exemption notifications in question are to be interpreted liberally. Notification No.93/2008-Cus prescribes that exemption from special CVD in specific is not available without VAT/Sales tax is paid by the importer. Further mandates notification is that SAD which has been levied on the importer is to safeguard the VATA/Sales tax is to be paid by the importer/trader at the time of sale of the goods. Therefore, if the importer sells the goods and make payment of VAT/Sales tax then the importer is entitled to claim refund of SAD paid by them at the time of import of the goods. If the goods are not sold by the importer, the importer is not entitled for refund of SAD paid by him. The importer shall claim ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The cause of action to claim refund of SAD does not arise as per Notification No.102/07-Cus dated 14.9.2007 and Notification No.93/08-Cus dated 1.8.2008. If the SAD and VAT/Sales tax paid on the imported goods, it will amount to double taxation on the said imported goods as condition 2(c) of the said notification bars the importer to file refund after clearance of goods after one year of the SAD. Once the intent of the Legislature is to refund the SAD on payment of VAT/Sales-Tax, the condition 2(c) of the Notification is against the intent of the Legislature. A sit is not the intent of legislature to tax double on the imported goods, the importer shall not compete Indian market. For example, if importer imported goods in March, 2020, after lockdown due to the Pandemic Covid 19 in all over country, second wave of Pandemic and various parts of India is under locked down, if the importer failed to sell the imported goods, the importer shall be put on another burden of SAD which is otherwise entitled of refund on payment of VAT/Sales tax. c) Similar view has been adopted in the case of M/s Devki Nandan J Gupta v Commissioner of Customs 2015 (318) ELT 167 5. The original aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one year is getting expired, the assessee is not allowed to file more than one refund claim in a month. In my view even if more than one claim in a month is filed the same can not be denied only because of the reason that circular prescribed only one refund claim in a month otherwise statutory time limit of one year provided in the notification will become redundant. In similar situation this Tribunal in the case of B.S.L. Ltd. Versus Commissioner of C.Ex., Jaipur (supra) has held that the refund under Rule 5 is permissible despite the claim having been second time in a month which is violation of condition of 11/2002-C.E. (N.T.) dated 1/3/2002. In my view this was held keeping in mind that though there is procedure to file one refund in a month or in the quarter as case may be but since time limit of one year is prescribed for filing refund claim the said procedure infraction should not come in way of the substantial claim of the assessee. In view of my above discussion, I am of the considered view that the appellant is entitled for refund claim. Hence the appeal is allowed. In view of the foregoing findings and discussions we are of the considered view that the benefits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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