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TMI Blog2024 (12) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... one year from the date of payment of duty? HELD THAT:- It was case of the assessee that the refund claim has been filed after one year of date of payment of duty, but it is within one year from the date of finalization of the provisional assessment. The Tribunal relying on the case of BHARAT SHIP BREAKERS CORPORATION, RISHI SHIP BREAKERS VERSUS COMMISSIONER OF CUSTOMS, JAMNAGAR (PREV.) [ 2023 (3) TMI 1547 - CESTAT AHMEDABAD] allowed the appeal. In view of the similar facts in case of THE COMMISSIONER, CUSTOMS (PREVENTIVE) VERSUS M/S SHITAL ISPAT PVT. LTD. [ 2024 (9) TMI 1669 - GUJARAT HIGH COURT] , these appeals being devoid of any merit, no questions of law much less any substantial questions of law arises from the impugned order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2024 wherein by order dated 30.08.2024, this Court had dismissed the said Tax Appeal holding that no substantial question of law arises from the order of the CESTAT. 4. This Court in order dated 30.08.2024 in Tax Appeal No. 837/2024 on the similar substantial question of law following the decision of Delhi High Court in case of Pioneer India Electronics Pvt. Ltd vs. Union of India reported in 2014 (301) ELT 59 held as under :- 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 for many reasons. These are as under: i. As per Section 25(1), Central Government is empowered to issue a notification granting exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where the Assessee bona fidely believed and were acting on the presumption that period of one year was to be computed from the date of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 1st 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, 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 Secr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-assessee filed the refund claim under the Notification No. 102/2007-Cus. which was rejected solely on the ground of limitation. 7. It was case of the assessee that the refund claim has been filed after one year of date of payment of duty, but it is within one year from the date of finalization of the provisional assessment. The Tribunal relying on the case of M/s. Bharat Ship Breakers Corporation in similar issue vide order dated 27.03.2022 allowed the appeal. 8. In view of the similar facts considered by this Court in Tax Appeal No. 837 of 2024 which was further followed in other Tax Appeal No. 815 of 2024 and other allied matters in case of M/s. Shital Ispat Pvt. Ltd., we are of the opinion that these appeals being devoid of an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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