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TMI Blog2024 (6) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment of such additional duty. The High Court further observed that neither section 27 of the Customs Act nor the provisions of the amended notification dated 01.08.2008 can impose a limitation period and such limitation can only be introduced by legislation - the High Court concluded that the period of limitation contemplated under section 27 of the Customs Act would not be applicable to a refund made under the notification dated 01.08.2008, more particularly when the customs authority also understood that section 27(1) of the Customs Act would not be applicable. Under the notification dated 14.09.2007, it is imperative for the importer to satisfy the conditions enumerated therein. It would, therefore, be necessary to examine in each case whether the said conditions have been fulfilled. Thus, the limitation of one year period from the date of payment of additional duty contemplated in the amending notification dated 01.08.2008 cannot be examined dehors the conditions stipulated in the notification dated 14.09.2007. In CC, HYDERABAD CUSTOMS VERSUS KHAZANA [ 2019 (4) TMI 492 - CESTAT HYDERABAD] , a learned member of the Tribunal did not follow the decision of the Delhi High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Department ORDER A Division Bench of this Tribunal has referred the following issue to be decided by a larger Bench of the Tribunal: Whether the time limit prescribed for filing refund claim of SAD paid by the importer is one year in terms of Notification No. 93/2008(Cus) dated 01.08.2008 which has been issued in terms of section 25(1) of the Customs Act, 1962 without selling the imported goods by the importer within one year of payment of SAD shall be applicable or not ?. 2. To examine this issue, it would be appropriate to first narrate the essential facts. The appellant imported PVC resins on payment of customs duty, countervailing duty and special additional customs duty. This additional duty was paid by the appellant under section 3(5) of the Customs Tariff Act, 1975 [the Tariff Act] that provides that if the Central Government is satisfied that it is necessary in the public interest to levy on any imported article such additional duty as would counter- balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India, it may, by notification in the Official Gazette, direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 3. The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above, are fulfilled. 4. The aforesaid notification dated 14.09.2007 was amended on 01.08.2008. Paragraph 2(c) was substituted by providing that the importer shall file a claim for refund of the said additional duty paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty. The said notification dated 01.08.2008 is reproduced below: Notification dated 1 August, 2008 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 makes the following amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 102/2007-Customs, dated the 14th September, 2007 which was published the Gazette of India, Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department before the Hon'ble Bombay High Court which vide its judgment dated 01.10.2018 [reported 2019 (365) E.L.T. 285 (Bom.)] set aside the aforesaid Final Order by holding that that subsequent to the amendment to Notification No.102 of 2007 by Notification No. 93/2008, a refund claim for Special Additional Duty, cannot be granted, if not made within one year of payment, as under:- 6.4 Relying upon the judgment dated 01.10.2018 of Hon'ble Bombay High Court in Purab Textile , I hereby hold that the refund claim filed in the year 2015 by the appellant are is subject to limitation period of one year. Further the refund application is held to be time barred in terms of Notification no. 102/17-Customs dated 14.09.2007, having been filed on 30.11.2016, that is, one year after the date of payment of duty for all 04 Bills of Entry involved, which is between 23.09.201550 09.11.2015. (emphasis supplied) 8. The Commissioner (Appeals) held that since the refund claims were filed beyond one year from the date of payment of additional duty, they were rightly rejected. The judgment of the Delhi High Court in Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi [2014 (304) E.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of additional duty under the notification dated 01.08.2008 is bad in law as it is against the intent and purpose of granting refund of additional duty and is also contrary to the other conditions of the notification dated 14.09.2007 that require subsequent sale upon payment of sales tax / VAT, which is a market driven event. The notification has, therefore, been read down by the Delhi High Court in Sony India; (ii) To support this contention, learned counsel also placed reliance upon two decisions of the Tribunal in Commissioner of Customs-New Delhi (ICD TKD) vs. Radial Rubber Industries [2020 (2) TMI 1212-CESTAT NEW DELHI] and Suzuki Motorcycle India Pvt. Ltd. vs. Commissioner of Customs [Customs Appeal No. 51655 of 2021 decided on 25.04.2024]; (iii) The decision of the Bombay High Court in CMS Info System has been distinguished by the Tribunal in Radial Rubber Industries and the Delhi High Court dismissed the appeal filed by the department against this decision on 19.04.2022; and (iv) The Tribunal has in number of decisions followed Sony India. 12. Shri Anurag Kumar, learned authorized representative appearing for the department, however, contended that in view of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be prescribed for such refund to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, before the expiry of one year, from the date of payment of such duty or interest 17. The provisions of the notification dated 14.09.2007 as amended on 01.08.2008 and the aforesaid provisions of the Tariff Act and the Customs Act were examined by the Delhi High Court in Sony India. It was held that since additional duty levied under section 3(5) of the Tariff Act is refundable only on a subsequent sale, no limitation can possibly be imposed for filing a refund claim from the date of payment of such additional duty. The High Court further observed that neither section 27 of the Customs Act nor the provisions of the amended notification dated 01.08.2008 can impose a limitation period and such limitation can only be introduced by legislation. The High Court also noticed that the expression so far as may be in section 3(8) of the Tariff Act was significant and this would mean that the provisions of Customs Act would be applicable only to the extent possible . Thus, the High Court concluded that the period of limitation contemplated under section 27 of the Customs Act would not be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms in a case where the importer advances a refund of SADC paid owing to having incurred sales tax/VAT liability on subsequent sale of goods, it must be introduced by legislation, given the expropriatory consequences of such a limitation period. ***** 14. The expression so far as may be in this context, under Section 27 is significant as well as instructive. The levy under CUSAA3/2014 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 exists, would be the highest of such rates and the terms of imposition of SADC would be spelt out in the notification. In this case, 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) which led to confusion. In Notification No.102/2007-Customs dated 14.09.2007 there was no period of limitation; by Circular No.6/2008-Customs, an amending notification providing for one ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te documentation within the normal period of six months. Taking into account various factors, it has been decided to permit importers to file claims under the above exemption upto a period of one year from the date of payment of duty. Necessary change in the notification is being made so as to incorporate a specific provision prescribing maximum time-limit of one year from the date of payment of duty, within which the refund could be filed by any person. It is also clarified that the importers would be entitled to refund of duties only in respect of quantities for which the prescribed documents are made available and the claims submitted within the maximum prescribed time of one year. Unsold stocks would not be eligible for refunds. Notification No. 93/2008, dated 1-8-2008 was issued prescribing the period of limitation as one year from the date of payment of additional duty of Customs. 17. Plainly, therefore, Section 27 was understood as not applying to SAD cases, even though it was in the statute book for many years. Yet, with the introduction of the circular and then the notification (No. 93), the Customs authorities started insisting that such limitation period which was prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the period of limitation of one year was to be calculated based upon the date of payment of the S.A.D. and not based upon the date of further sale or payment of VAT, was held to be erroneous . In this view of the matter, it is held that the appeal, at least as far as the undisputed amounts with respect to the 5 bills of entry are concerned, requires to be allowed. xxxxxxxxx. (emphasis supplied) 20. This is also what was held by a Division Bench of the Tribunal in Radial Rubber Industries. The contention of the department that the decision of the Delhi High Court in Sony India would not be applicable to matters after the notification dated 01.08.2018 was issued, was repelled and the relevant observations are as follows: 22. Learned Authorised Representative of the Department has also submitted that the judgment of the Delhi High Court in Sony India would not be applicable for the reason that the refund in that case was filed at a time when the amended notification dated 1 August, 2008 had not been issued. 23. This submission cannot be accepted for the simple reason that the Delhi High Court has not allowed the refund claims for the said reason. It has allowed the refund claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent preferred an appeal before the Commissioner of Customs (Appeals), New Delhi. The learned Commissioner of Customs (Appeals), relying upon the judgment passed by this Court in Sony India Pvt. Ltd. v. Commissioner of Customs: 2014 (304) ELT 660, allowed the appeal filed by the respondent by order dated 24.10.2017. The appeal filed by the appellant challenging the order dated 24.10.2017 was dismissed by the learned CESTAT by its order dated 21.02.2018 (impugned order). 8. The impugned order indicates that the learned CESTAT had followed its earlier decision in Commissioner of Customs, New Delhi v. M/s. Siya Paper Mart Pvt. Ltd.: final order No. 58613/2017 dated 27.12.2017. The said decision in Commissioners of Customs, New Delhi v. M/s. Siya Paper Mart Pvt. Ltd. (supra) was rendered following the decision of this Court in Sony India Pvt. Ltd. v. Commissioner of Customs: 2014 (304) ELT 660, whereby this Court had held that the rejection of refund of the SAD, on the ground of limitation, was not sustainable. 9. Concededly, the decision of this Court in Sony India Pvt. Ltd. v. Commissioner of Customs (supra), covers the controversy whether the time limit prescribed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Nanak Electronics Pvt. Ltd. [2023 (7) TMI 1319- SC Order]. The relevant portion is reproduced below: Delay condoned. In view of the order dated 04.07.2023 passed by this Court in SLP (C) Dy. No. 23340/2023 which has not been interfered with the order impugned therein. The special leave petition, accordingly, stands dismissed. Pending application(s),if any, shall stand disposed of. 26. The Delhi High Court again examined this issue in Premier Timber and Trading Pvt. Ltd. vs. Pr. Commissioner Customs Import [2022 (7)TMI 885-Delhi High Court] and the relevant portion of the decision is reproduced below: 1. The only issue, which arises in the present appeal, according to the learned counsel for the parties, concerns application of limitation vis- -vis refund sought qua Special Additional Duty of Customs (SAD). 2. Mr. Vaibhav Joshi, who appears on behalf of the respondent/revenue, has fairly informed us that the issue stands covered by a judgement dated 16.04.2014 passed by a coordinate bench of this Court in Sony India Pvt. Ltd v. Commissioner of Customs, New Delhi, 2014 (304) ELT 660 (Del), as also by another judgment dated 21.09.2016, rendered by another coordinate bench of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant appeal. (emphasis supplied) 27. In Commissioner of Customs (Import) vs. Gulati Sales Corporation [2018 (360) E.L.T. 277 (Del.)], the Delhi High Court reiterated the view expressed earlier in Sony India and the relevant portion of the judgment is reproduced below: 3 . In our opinion, the issue is covered by the decision of the Delhi High Court in the case of Sony India Private Limited v. Commissioner of Customs, 2014(304)E.L.T. 660 (Delhi) (hereafter sony India ). 4. The said judgment was followed in Pee Gee International v. Commissioner of Customs (ICD), Tughlakabad, New Delhi, 2016 (343) E.L.T. 72 (Delhi). 5. Learned counsel for the appellant, however, has drawn our attention to the decision in Principal Commissioner of Customs v. Riso India Private Limited, 2016 (333) E.L.T. 33 (Del.) (hereafter Riso India ), which according to him, takes a different view from the view expressed in Sony India (supra). It is accordingly submitted that limitation period specified under Section 27 of the Act would apply to claims for refund made under the notification of 2007, which had not prescribed a specified period of limitation. ***** 8. We, therefore, do not find any conflict between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is made out. No substantial question of law, therefore arises. The appeal is dismissed, without any order as to costs. (emphasis supplied) 28. It is however pointed out that Special Leave to Appeal (Civil) No. 4820 of 2018 filed by the department is pending before the Supreme Court. 29. This issue was also examined by Delhi High Court in Commissioner of Customs, ICD TKD vs. Thermoking [2023 (384) E.L.T. 315 (Del.)/(2023) 2 Centax 42 (Del.)] and the relevant portion of the judgment is reproduced below: 4.1 The issue which arises in the instant appeal, as in the Premier Timber case, concerns the application of limitation vis- -vis refund sought qua Special Additional Duty of Customs, levied under Section 3(5) of the Customs Tariff Act, 1975. ***** 4.3 After examining the said judgments, we had agreed with the reasoning and conclusions arrived at in Sony India Pvt. Ltd. case. 4.4 This aspect was also noticed by another Coordinate Bench in a judgment dated 19-4-2022, passed in CUSAA No. 36/2021, titled Commissioner of Customs v. S.R. Traders, which included one of us i.e., Rajiv Shakdher J. In S.R. Traders, it had been noted that Bombay High Court in CMS Info Systems Ltd. v. Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal duty of customs. (emphasis supplied) 31. It would be seen from the aforesaid paragraphs of the judgment of the Bombay High Court that the contention that an importer has to pay appropriate sales tax or value added tax on the sale and also provide copies of documents with the refund claim, otherwise the refund would not be admissible was not examined by the Bombay High Court for the reason that it was not possible to guess whether the refund application would be held non-maintainable on these grounds. The High Court also observed that this issue was not required to be examined or decided by the High Court because the High Court was only dealing with a case where the refund application had been rejected because it was not filed within one year from the date of payment of additional duty. 32. The Delhi High Court had, on the other hand, in Sony India examined the provisions of the notification dated 14.09.2007 as also the notification dated 01.08.2008 that amended paragraph 2(c) of the notification dated 14.09.2007 and introduced a time limit of one year. It is on a perusal of the said notification dated 14.09.2007 that the Delhi High Court observed that the importer is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors [1997 (96) E.L.T. 257 (Tri.)]. One issue that was addressed by the Larger Bench was what should be done when the Tribunal is faced with conflicting decisions of High Courts. The Larger Bench of the Tribunal held that if the jurisdictional High Court has taken a particular view on an interpretation or proposition of law, that view has to be followed but if the jurisdictional High Court has not expressed any view in regard to the subject matter and there are conflicting views of other High Courts, then the Tribunal will be free to formulate its own view. 37. A Division Bench of the Tribunal in C.C. New Delhi (ICD TKD) (Import) vs. JG Impex Pvt. Ltd. [2018 (10) TMI 1483 CESTAT NEW DELHI], however, attempted to distinguish the judgment of the Delhi High Court in Sony India. After referring to section 27 of the Customs Act, the Division Bench observed: 8. The words used in the provision makes it clear that statute has not distinguished the nature of duty or interest, the refund where of is claimed. Hence, even if we do not look into the amended Notification No.93/2008, the period of limitation as applicable for filing the refund claim under Notification 102/2008 will otherwise be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of the Tribunal in JG Impex, Khazana, Hariyana International, Nav Bharat Trading Corporation and Surya Telecom, for the reasons stated above, do not lay down the correct law. 44. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that it would not be necessary for an importer to file a claim for refund of the additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs in view of the judgment of the Delhi High Court in Sony India. The limitation of one year for filing a claim for refund of additional duty of customs paid on import of goods from the date of payment of additional duty would, therefore, not be applicable. 45. The reference is, accordingly, answered in the following terms: The time limit imposed upon an importer for filing a refund claim of additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of said additional duty of customs in terms of the notification dated 01.08.2008 would not be applicable in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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