2014 (4) TMI 870 - DELHI HIGH COURT

Bar of Limitation – Refund of Special additional customs duty (SAD) - Notification no. 102/2007-Cus – Absence of limitation period in the original Notification - Can period of limitation for preferring refund claims, specified in the amending notification be made applicable with retrospective effect, in absence of a limitation period in the original Notification in respect of goods imported prior to the issue of the amending notification – Held That:- In the absence of specific provision of Section 27 being made applicable in the said notification, the time-limit prescribed in this section would not be automatically applicable to refunds under the notification - With the introduction of the circular and then amended notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed w.e.f. 01.08.2008 by notification became applicable - There is a body of law that essential legislative policy aspects period of limitation being one such aspect cannot be formulated or prescribed by subordinate legislation.

Relying upon Khemka and Co. Private Ltd. v. State of Maharashtra [1975 (2) TMI 91 - SUPREME COURT OF INDIA] - In matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or rules cannot prevail or be made, in such cases - The imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail - This Court holds that the amending notification must be read down to the extent that it imposes a limitation period - Decided in favour of assesse.