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TMI Blog2024 (4) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 (Tri. - Ahmd.)]. Accordingly, he requested to allow their appeals. 3. The Ld. Authorized Representative appearing for the Revenue submits that this Bench has decided this matter in the case of M/s. Abhishek Marketing v. Commissioner of Customs (Port), Kolkata [Final Order No. 75572 of 2024 dated 20.03.2024 in Customs Appeal No. 79748 of 2018 - CESTAT, Kolkata] wherein the Tribunal has held that the one-year period for filing the refund claim should start from the date of payment of additional customs duty. Accordingly, he prayed for rejecting the appeals filed by the appellant. 4. Heard both sides and perused the appeal documents. 5. I find that on an identical set of facts, this Tribunal in the case of M/s. Abhishek Marketing (supra) has analysed a similar issue, wherein it has been categorically observed as under: - "8. The period in the Sony India case was December 2007, that is prior to the amendment carried out vide Notification No. 93/2008-Cus dated 01.08.2008. The Delhi High Court has followed the Sony India judgement in the Gulati Sales Corporation case wherein again the period of import was September, 2007 to January, 2008 [2017(352)E.L.T. 360 (Tri.Del.)]. On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exemption notification and therefore all conditions of the exemption notification apply. Hence a refund claim filed after the period of one year is not admissible. [Notification No. 102/2007-Cus., dated 14-9-2007 as amended by Notification No. 93/2008-Cus., dated 1-8-2008] "Exemption from special CVD to all goods imported for subsequent sale when VAT/Sales Tax paid by importer. - In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (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 1975) when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled : (a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Hon'ble High Court of Delhi and differed from it. The Hon'ble High Court of Bombay observed that in terms of Section 3(5) of the Customs Tariff Act, the provisions of Customs Act and the rules and mechanisms for refund apply to any claim of refund of SAD. Therefore, Section 27 of the Customs Act, 1962 including the time limit of one year applies. Further, the amended notification has also introduced a limitation for seeking refund. The Hon'ble Bombay High Court also held that this is an exemption granted and it is conditional. The exemption being conditional, it is not permissible to pick and choose the convenient conditions of the exemption notification and leave out those which are onerous and excessive. The Hon'ble High Court further held that but for the exemption notification, there is no right of refund vested with the importer. 11. In view of the above legal position and factual matrix, Ld. Counsel for the appellants submits that the position of law enunciated by the Hon'ble High Court of Delhi in the case of Sony India Pvt. Ltd. (supra) is correct and proper and must be applied and therefore they are entitled to refund of SAD paid by them even though they fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication. 13. He fairly submits that there are a number of decisions by various judicial fora including the Hon'ble Apex Court taking both liberal and strict interpretations of the exemption notifications. In view of the conflicting judgments, the matter was referred to a Five-Judge Constitutional Bench of the Supreme Court in the case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company reported in 2018 (361) E.L.T. 577 (S.C.). Paras 52 & 53 of the this judgment were as follows: "52. To sum up, we answer the reference holding as under - (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) the ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled. 53. The instant civil appeal may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed position is that this is a case of a refund arising out of a conditional notification. 16. We find that the Hon'ble High Court of Delhi has taken a liberal view in 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 No. 102/97 after amendment. On the other hand, the Hon'ble Bombay High Court has constructed the exemption notification strictly and held that all conditions including the time limit within which the refund claim has to be filed must be fulfilled. We also find that there is no order of the jurisdictional High Court of Madras. However, the question of strict versus liberal interpretations of the exemption notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of refund claims filed prior to the amendment carried out vide Notification No. 93/2008-Cus dated 1.8.2008. On the other hand, in the case of Trans Bio-Metal case cited supra the period involved is December 2015 to April, 2016. Further, in this case the Tribunal has extensively cited the order of the Hon'ble Bombay High Court in the case of CMS Info Systems Ltd., Vs. UOI-2017(349) E.L.T. 236 (Bom.). The Tribunal has also considered the judgment of Hon'ble Supreme Court in the case of Commissioner of Customs (Imports), Mumbai Vs. Dilip Kumar-2018(361) E.L.T. 577 (S.C.), wherein it has been held that if the assessee wishes to avail any exemption Notification, all the conditions set therein have to be fully complied with. In the present case, both the Bombay High Court judgment and Supreme Court judgment in the case of Dilip Kumar would be squarely applicable. If the appellant wishes to claim the refund of CVD, he is required to fulfill the condition of filing the refund claim within one year which is a mandatory condition under Notification No. 93/2008. 12. Therefore, following the ratio of Tranasia Bio-Medicals Ltd. Case law, I dismiss the appeal filed by the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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