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TMI Blog2024 (9) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 - CESTAT NEW DELHI ] where it was held that ' Since the petitioner has filed the claims within the period stipulated by section 27 of the Act, in view of the construction given by us, the same could not have been rejected on the ground of limitation.' Thus, the date of making the refund application would be required to be considered from the date of final assessment and not from the date of payment of provisional duty as per the provisions of Section 27 (1B) (C) of the Act and the reliance placed by the Revenue on the interpretations of the impugned Notification No. 93/2008 cannot be applied contrary to the statutory provisions. Thus, no questions of law, much less any substantial question of law arises from the impugned order of the Tribunal and the Appeal therefore, being devoid of any merit is accordingly dismissed. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Appellant(s) No. 1 : Mr Utkarsh R Sharma (6157). For the Respondent : None. ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Utkarsh R. Sharma for the appellant. 2. By this Appeal under Section 130 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter in the similar circumstances, that refund cannot be rejected as time barred and Bench allowed the appeal by remanding the same to adjudicating authority for deciding refund claim if otherwise admissible. This Court is inclined to follow the same decision and particularly emphasizes, there is no ambiguity as such in the notification as the statutory provision as that contained in Section 27 (1B) (C) is very clear as to what is the date of payment to be reckoned when provisional assessment has been resorted to. The relevant notification has no clause providing otherwise, therefore, the same needs to be interpreted harmoniously with the statutory provision and it appears that the Board Circular was correctly ignored in the decision of SUZUKI MOTORCYCLE INDIA P. LTD, under the similar circumstances. 4.1. Learned advocate Mr. Utkarsh Sharma appearing for the appellant submitted that the Tribunal has committed an error by not applying the Notification No. 102/2007 read with Notification No. 93/2008 which provides for one year time period for filing the refund application for SAD paid on the imported goods with the jurisdictional Customs Officer within one year from the date of pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of one year and admittedly, in the facts of the case, the said limit is crossed by the respondent in filing the refund claim. 4.5. It was therefore submitted that the order of the Tribunal requires interference and the Appeal may be entertained on the substantial questions of law proposed by the Revenue. 5. Having heard the learned advocate Mr. Utkarsh Sharma for the appellant-Revenue and considering the submissions made, it is not in dispute that the respondent-assessee has made the payment of duty and therefore the limitation could not have been started from the date of such payment of duty as per the provision of Section 27 (1B) (C) of the Act which provides as to how the period of one year would start for the purpose of making the refund claim. Section 27 (1B) (C) of the Act reads as under : Section 27 (1B) (C):where any duty is paid provisionally under section 18, the limitation of one year shall be computed from the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment. 6. The CESTAT by considering the above provisions of Section 27 (1B) (C) of the Act has rightly come to the conclusion that what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification but a notification can extend and increase the period of limitation. Similarly, a circular cannot reduce the period of limitation for seeking refund stipulated in Section 27 of the Act. iii. Section 27 applies to all refunds whether due and payable pursuant to appellate orders or court orders or otherwise in terms of exemption notification under Section 25 (1) or special orders under Section 25 (2) of the Act. iv. The expression date of payment used in notification No. 93 of 2008 dated 1st August, 2008 can mean the date of final assessment. The said interpretation would be in accordance and as per explanation II to Section 27. Similar expression has been used in Section 27 (1). Circular issued on 29th July, 2010 accepts that in some cases refunds under the notification dated 1st August, 2008 had been issued on a claim being made within one year from date of final assessment and beyond one year from the date of provisional assessment. The circular however, stipulates that the claim for refund would be entertained under the notification dated 1st August, 2008, if it is made within one year from payment of duty and not final assessment. This, may result in reducing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n given by us to the circular hereinabove, the Judgment relied upon by the counsel for the Petitioner of the High Court of Madras in the case of KSJ Metal Impex Private v. Under Secretary, Customs and Others in Writ Petition No. 959/2013 decided on 21.01.2013 need not be referred to. Even otherwise the said judgement is not applicable in the facts of the present case as the same was dealing with the issue of interest on delayed refunds. 42. Since the petitioner has filed the claims within the period stipulated by section 27 of the Act, in view of the construction given by us, the same could not have been rejected on the ground of limitation. 8. We are in complete agreement with the aforesaid observations of the Delhi High Court which is followed by the Tribunal to the effect that the date of making the refund application would be required to be considered from the date of final assessment and not from the date of payment of provisional duty as per the provisions of Section 27 (1B) (C) of the Act and the reliance placed by the Revenue on the interpretations of the impugned Notification No. 93/2008 cannot be applied contrary to the statutory provisions. 9. In view of the foregoing re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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