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TMI Blog2024 (9) TMI 1669X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said notification, can be considered from the date of finalisation of provisional assessment (in cases where the assessment is provisional) or otherwise - whether the refund filed in the instant case is well within the time as prescribed under N/N. 102/2007-Cus and refund is not time barred? HELD THAT:- This Court in PIONEER INDIA ELECTRONICS (P) LTD. VERSUS UNION OF INDIA ANOTHER [ 2013 (9) TMI 705 - DELHI HIGH COURT] has held that '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 dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07-Cus and refund is not time barred. ? 2. Learned advocate Mr. Utkarsh Sharma at the outset submitted that similar issue came up for consideration before this Court in Tax Appeal No. 837/2024 and, by order dated 30.08.2024, this Court has dismissed the said Tax Appeal holding that no question of law arises from the order of the CESTAT. 3. This Court in order dated 30.08.2024 in Tax Appeal No. 837/2024 has held as under wherein, the decision of Delhi High Court in case of Pioneer India Electronics Pvt. Ltd vs. Union of India reported in 2014 (301) ELT 59 was referred: 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case has arisen largely due to failure of the respondents to pass final adjudication orders which were belatedly made. Bills of exchange between the period 20th December, 2008 to 6th March, 2009; bills of exchange between 27th March, 2009 to 12th August, 2009; and bills of exchange between 8th September, 2009 to 9th October, 2009 were finally adjudicated on 9th July, 2010. There is no explanation for this delay and the cause thereof. 37. Circular No. 23 of 2010/custom issued on 7th September, 2010 stipulates that the date of payment of provisional duty and not the date of final adjudication is determinative for computing the limitation period of refund under notification No. 93 of 2008 issued on 1st August, 2008, can be faulted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 period. Assuming that the issue of date of payment was debatable, the Board did not deem it appropriate to fix a period or time limit during which claims of refund should be entertained in cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010. b. where the goods are released on provisional assessment followed by the final assessment, the application seeking refund can be made within the period of one year or six months, as the case may be, of the final assessment as stipulated by Explanation II to section 27 of the Act or within the enlarged period of one year from the date of provisional release as stipulated by the notification dated 1 st August, 2008 read with Circular No. 23/2010-Custom dated 29th July, 2010. 40. The Circular No. 23/2010-Custom in so far as it stipulates that the provisions of section 27 of the Act do not apply to the Notification cannot be sustained to the extent indicated above. 41. In view of the construction given by us to the circular hereinabove, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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