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2021 (5) TMI 483 - AT - CustomsRefund of SAD - rejection on the ground of time limitation - time limit prescribed for filing refund claim is one year from the date of payment of SAD or not - N/N. 102/2007-Cus dated 14.9.2007 as amended by N/N.93/2008-Cus dated 1.8.2008 - HELD THAT:- As per the observations made by the Hon’ble Apex Court in CC (PREVENTIVE), MUMBAI VERSUS M/S M. AMBALAL & CO. [2010 (12) TMI 16 - SUPREME COURT], the exemption notifications in question are to be interpreted liberally. N/N. 93/2008-Cus prescribes that exemption from special CVD in specific is not available without VAT/Sales tax is paid by the importer. Further mandates notification is that SAD which has been levied on the importer is to safeguard the VATA/Sales tax is to be paid by the importer/trader at the time of sale of the goods. Therefore, if the importer sells the goods and make payment of VAT/Sales tax then the importer is entitled to claim refund of SAD paid by them at the time of import of the goods. If the goods are not sold by the importer, the importer is not entitled for refund of SAD paid by him. The importer shall claim refund of such additional duty of customs paid on the imported goods with the jurisdictional Customs officer before expiry of one year from the date of payment of additional duty. COVID Pandemic situation - HELD THAT:- If importer imported goods in March, 2020, after lockdown due to the Pandemic Covid 19 in all over country, second wave of Pandemic and various parts of India is under locked down, if the importer failed to sell the imported goods, the importer shall be put on another burden of SAD which is otherwise entitled of refund on payment of VAT/Sales tax. Further, unless and until the goods are sold on payment of VAT/Sales tax, cause of action for refund of SAD does not arise, the said issue has not been addressed by the Division of this Tribunal in the case of C.C. -NEW DELHI (ICD TKD) (IMPORT) VERSUS AGGARWAL TRADING COMPANY [2018 (10) TMI 1572 - CESTAT NEW DELHI], the same has been addressed by the Single Member Bench of this Tribunal on various occasions. In that circumstance, as there are contrary views of this Tribunal, then it would be in the interest of justice, the matter needs to be referred to the Larger Bench of this Tribunal to decide the following issues: Whether the time limit prescribed for filing refund claim of SAD paid by the importer is one year in terms of Notification No. 93/2008(Cus) dated 01.08.2008 which has been issued in terms of section 25(1) of the Customs Act, 1962 without selling the imported goods by the importer within one year of payment of SAD shall be applicable or not? The Registry is directed to place the records before the Hon’ble President for constitution of Larger Bench to decide the issue.
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