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2019 (9) TMI 1563 - CESTAT CHENNAIRefund of Special Additional Duty (SAD) - Rejection of refund on the ground that the claim was filed filed after the period of one year - violation of time limitation as prescribed under N/N. 102/2007-Cus., dated 14-9-2007 read with N/N. 93/2008, dated 1-8-2008 - ambiguity in exemption notification - benefit of doubt to be available to assessee or to Revenue - HELD THAT:- The Hon’ble High Court of Delhi in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] framed the question of law only with respect to retrospective application of the amendment but also held that the amending notification must be read down to the extent it imposes a time limit for filing the refund claim. Evidently, if an importer resells the goods and files the refund claim within the period, they will be put to loss as he will be bearing both the burden of SAD and the VAT which he would pay while selling the goods. The Hon’ble High Court of Bombay in M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT] on the other hand held that it is not open for the importer to pick and choose parts of the exemption notification that suits while ignoring those that don’t. The Hon’ble High Court of Bombay also held that Special Additional Duty of Customs is also in the nature of customs duty and it is not a duty on sale of goods. It further held that the importer does not have any vested, let alone absolute right, for refund of the SAD. There were contrary decisions - the matter was referred to a Five-Judge Constitutional Bench of the Supreme Court in the case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] - the judgment of the Hon’ble High Court of Bombay in the case of CMS Info System [2017 (1) TMI 786 - BOMBAY HIGH COURT] is consistent with the ratio of Dilip Kumar’s case, which is required to be followed, where it was held that When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. The refund application of the importer beyond the time limit has been correctly rejected by the lower authorities - appeal dismissed - decided against appellant.
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