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TMI Blog2024 (3) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous refund amount paid by them, then the same had to be within the prescribed limitation which as per the concurrent findings of the lower authorities was not done and therefore, the claim filed in the year 2021 was clearly barred by limitation. Impugned order is therefore maintained and appeal is rejected. - HON'BLE MEMBER ( JUDICIAL ) , MR. SOMESH ARORA And HON'BLE MEMBER ( TECHNICAL ) , MR. C. L. MAHAR Ms. Dimple Gohil , Advocate for the Appellant Shri. Himanshu P Shrimali , Superintendent ( AR ) for the Respondent ORDER SOMESH ARORA The Appellant is, inter alia, engaged in the business of importing Mitsubishi Air Conditioners-Cooling Ductable and clearing the same for home consumption. The Appellant imported the said goods as per following details of dates of events: Sl. DATES EVENTS 1. 19.03.2016 Bill of Entry No. 4644128 filed at ICD Sanand on payment of BCD and 4% SAD (Rs.3,79,272.40) under Section 3(5) of the Customs Tariff Act, 1975. 2. 28.9.2016 (24.8.2016) Claim for Refund for Rs.3,79,272.40 i.e., 4% SAD terms of Notification No. 102/2007-Cus. Dated 14.09.2007 as per procedure by Circular No. 6/2008- Customs dated 14.09.2007 read with Circular No. 16/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were rejected and intra alia held that: a. that the Refund sanctioned vide Refund Order did not fulfil Condition 2(b) of the said Notification, which lapse was flagged by Headquarters Audit, Customs, Ahmedabad vide its letter dated F.No. VIII/20-490/Cus-Ref/IAD/2016-17 dated 07.02.2017 b. that the Appellant had maintained silence for more than 4 years and then filed for refund on which the duty had been paid on 22.03.2016. c. that the refund claim was not admissible as it was time barred and hence it was rejected. 10. Appeal dated 21.02.2022 filed before the Commissioner (Appeals) Aggrieved by the Order-in=-Original, Appellant filed appeal before the Commissioner of Customs (Appeals) Ahmedabad 11. Written Submission via email dated 28.08.2023 Appellant filed written submission pursuant to personal hearing. 12. Order-in-Appeal No. AHD-CUSTM-000-APP- 158-23-24 dated 05.09.2018 passed by the Commissioner of customs (Appeals) Ahmedabad Vide which the first Appellate Authority rejected the Appellant's Appeal against Order-in-Original dated 03.01.2022 wherein the Appellant's refund claim of the Commissioner of Customs (Appeals), Ahmedabad SAD on imports of Air Conditioners san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch letter was not provided to them. 4.1 In Commissioner of Sales Tax, U.P. v. Auraiya Chamber of Commerce, Allahabad; 1986(25) E.L.T. 867(S.C.) the Hon'ble Supreme Court held that no tax shall be levied or collected except by authority of law. 5. Learned AR reiterates the findings of the lower authorities and that inital SAD duty was refunded to the department on its own volition and later refund filed was barred by limitation and has been correctly rejected. 6. Considered. In this regard, we find that Learned Commissioner (Appeals) has in detail dealt with this submission vide para 5.6 onwards of its order. 5.6 It is an undisputed fact that the refund claim, which was initially filed by the appellant was sanctioned. Thereafter, in the course of post clearance audit of the refund claim, it was observed that the appellant had not complied with the condition prescribed under Para 2(b) of the Notification No. 102/2007-Cus, dated 14.09.2007, which was communicated to the appellant through the Customs House Agent Consequently, agreeing to the observation, the appellant paid the refund amount along with interest in the Government Exchequer. Thereafter, the appellant have filed fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (a) on the basis of.- (i) his own ascertainment of such duty; or ((ii)the duty ascertained by the proper officer, the amount of duty along with the interest payable thereon under section 28AA or the amount of interest which has not been so paid or part-paid. [Provided that the proper officer shall not serve such show cause notice, where the amount involved is less than rupees one hundred.] (2) The person who has paid the duty along with interest or amount of interest under clause (b) of sub-section (1) shall inform the proper officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty or interest so paid or any penalty leviable under the provisions of this Act or the rules made thereunder in respect of such duty or interest: 5.7.2 On conjoint reading of Sub-Section (1) and (2) of Section 28 of the Customs Act, 1962, the proper officer shall not serve any notice, in case the person chargeable with erroneously refund has refunded duty before service of notice on the basis of his own ascertainment of such duty or the duty ascertained by the proper officer, and intimate such payment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a to the language of Section 28 of the Customs Act, 1962. Hence, the ratio of the above judgments is applicable to the facts and circumstances of the present case. 5.8 It is an undisputed fact that in light of the observations of the Audit regarding non fulfilment of the conditions of the Notification, the appellant had paid the erroneously refunded amount along with applicable interest before service of the Show Cause Notice by the proper officer. Hence, in terms of the Section 28 of the Customs Act, 1962, the proper officer was not required to issue any Show Cause Notice to appellant. Therefore, the contention of the appellant on the ground that they return the amount in anticipation of further communication from the respondent is legally not sustainable. 5.9 It is further observed that the adjudicating authority in the impugned order has recorded that the appellant had a copy of Judgment of Hon'ble CESTAT, Mumbai in case of M/s. Samsung India Electronic Pvt. Ltd., Gurgoan and submitted that in the said case the appeal was allowed in favour of M / s Samsung India in spite of invoices remain unprinted with declaration as required under clause 2(b) of the Notification No. 102/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Udyog Pvt. Ltd., wherein, the Hon'ble Tribunal had allowed the appeal relying upon Judgment of, Hon'ble High Court of Delhi in case of M/s. Sony India Pvt. Ltd. It is further observed that the judgment of Hon'ble Delhi High Court has been dissented by the Hon'ble High Court of Bombay in case of CMS Info Systems Ltd. [2017 (349) E.LT, 225 (Bom.)], wherein, the (appeal), High Court held that 34. Mr. Patil would submit that the import UP goods appropriate sales tax or value added tax, as the case may be, is equally a condition and further requirement is providing of copies of documents along with refund claim. Else, no refund is admissible. We are of the opinion that it is not possible to guess as to whether the refund application would be held to be non-maintainable purely on the grounds or for the reasons suggested. If it is made within a period of one year from the date of payment of the additional duty of customs, then, because there is no subsequent sale and the documents evidencing that, as also proof of payment of the sales tax or local taxes are required to be produced, that their production is also mandated in a particular period and within a particular time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) E.L.T. 1773 (Tri. Chennai)), after considering both the aforementioned judgments passed by Hon'ble High Court of Delhi and Hon'ble High Court of Bombay, held that the judgment of Hon'ble High Court of Bombay in case of CMS Info Systems Ltd. (supra), syncs well with the ratio of the judgment of the Constitutional Bench of the Hon'ble Apex Court on 30th July, 2018 in the case of Dilip Kumar Company. The relevant para is reproduced below: 17. To sum up, we find that the Hon'ble High Court of Delhi has taken a liberal view on interpreting the exemption notification and held that since the purpose of availing the SAD is to provide level playing field between the imported goods and the domestic goods, when the imported goods are resold on payment of VAT to the State Government, the exemption notification provides for refund of SAD. It may or may not be always possible for the importer to resell the goods and file the refund claim within time depending on his market conditions. Taking a liberal view, the Hon'ble High Court held that refund is available without the limitation of one year indicated in the exemption Notification 102/97 after amendment. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. From the above, it is clear that the letter dated 20.06.2017 by which refund amount along with interest dated 12/20.06.2017 had been paid by the appellant of amount of erroneous refund along with interest on same having been communicated to them was voluntarily act and which falls within parameter of requirement of Section 28 1(b) and because of which the proper officer was not required to issue any further show cause notice, unless the erroneous refund was found to be short paid. The appropriation of amount of refund and interest once paid voluntarily by appellant is selfappropriation. The amount thus paid was clearly on account of erroneous refund which vide its payment was accepted by the party obviating any necessity of further show cause notice. If for any reason appellant wanted refund of such erroneous refund amount paid by them, then the same had to be within the prescribed limitation which as per the concurrent findings of the lower authorities was not done and therefore, the claim filed in the year 2021 was clearly barred by limitation. 7. Impugned order is therefore maintained and appeal is rejected. ( Pronounced in the open Court on 21. 03. 2024 ) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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