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2016 (2) TMI 247 - HC - CustomsRefund of SAD - SAD had been paid, not in cash, but by utilising the DEPB scrip - scope of circular - whether ultra virus to the notification - whether, in the garb of circular issued by the Central Board of Excise and Customs (‘CBEC’) New Delhi, the benefit granted under a notification issued in terms of Section 25(1) of the Customs Act, 1962 (‘Act’) can be modified or amended. - Notification No. 102/2007 - what the circular stated was that refund of the SAD, which was liable to be made upon fulfilment of the conditions of Notification No. 102/2007-Customs, would not be in cash but re-credited to the relevant DEPB scrips which were used for making payment of the SAD. However, even this proposed system of re-crediting DEPB scrip was unable to be given effect to. The Director General of Foreign Trade (‘DGFT’) which issued the DEPB scrips apparently had no mechanism for re-crediting them through the electronic data interchange (‘EDI’) system. Held that:- Although it is sought to be projected that the circulars which are subject matter of the challenge in the present petitions were issued to streamline the procedure and to remove ambiguities, in fact what the circulars seek to amend is Notification No. 102/2007-Customs itself by introducing an additional condition for being entitled to refund, which condition does not find place in Notification No. 102/2007-Customs. Circular Nos. 6/2008, 10/2012 and 18/2013 issued by the CBEC could not have imposed an additional restriction for availing of the exemption in terms of the Notification No. 102/2007-Cus issued under Section 25(1) of the Act. An amendment to a notification issued in exercise of the powers under Section 25 (1) of the Act has to be brought about only by issuing another notification under that provision. Inasmuch as the circulars under challenge seek to impose an additional restriction for grant of refund of the SAD under Notification No. 102/2007-Customs, they are ultra vires of the Act and cannot be legally sustained. - refund to be allowed - Decided in favor of assessee.
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