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2020 (12) TMI 503 - AT - CustomsApplicability of the time period (limitation) to claim refund of Special Additional Duty (SAD) - N/N. 102/2007-Cus dated 14.09.2007 as amended by N/N. 93/2008-Cus dated 1.8.2008 - refund rejected on the ground the refund claim has not been filed within one year from the date of payment of duty, under Section 27 of the Customs Act, 1962 - HELD THAT:- The facts are not in dispute and admittedly, the respondent importer has filed refund claim after more than one year or may be by few days more from the date of payment of SAD. Hon’ble Delhi High Court judgement in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] has 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. The findings of the Hon’ble high Court clearly show understanding of the department with regard to clause of limitation provided in the Notification. The condition of limitation was not the part of the original notification. It was only with the introduction of Circular No. 6/2008-Cus. and Notification No.93/2008, the department started insisting on the limitation period (of one year) prescribed with effect from 1.8.2008, became applicable. The Hon’ble High Court has clearly held that the expression “so far as may be” used in the sub-section (6) of Section 3 of CTA has to be followed to the extent possible. Merely because Section 27 of the Customs Act provides for a period of limitation for filing refund claim, it cannot be held that even for the purposes of claiming refund in terms of the Notification, the same limitation has to be applied. The Hon’ble Delhi High Court has also held that in the maters 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 case. Appeal dismissed - decided against Revenue.
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