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2021 (10) TMI 342 - HC - CustomsRefund of CVD and Special Additional Duty (SAD) - claims were either refunded through DEPB credit or rejected on the ground that DEPB scrips cannot be re- credited as per the Board Circular No.18/13/Cus dated 29.4.2013 - N/N. 102/2007-Cus - time limitation - HELD THAT:- Indisputably, in N/N.102/2007-Cus dated 14.9.2007, no time period was mentioned for claiming the refund under the said notification. By virtue of the amendment notifications and Circular Nos.6/2008, 10/2012 and 18/2013 issued by Central Board of Excise and Customs, additional restrictions were imposed for availing the exemption. It is well settled that the circular instructions which are administrative in nature cannot efface the effect of the statutory exemption notifications issued. After granting exemption subject to certain conditions, new conditions cannot be introduced by administrative directions or guidelines contrary to the statutory notification or restricting or withdrawing the benefits or imposing strict conditions. Time limitation - main ground for rejecting the refund claims of the assessee is that the DEPB Scheme had lapsed at the time of filing of refund applications after curing the defective applications by the assessee - HELD THAT:- Neither Section 27 of the Act of 1962 nor a notification under Section 25 (1), such as the amended notification in No.93/2008-Cus can be used to impose a limitation period and the right to claim refund. The contention of the Revenue that the period of six months during the relevant period is the period of limitation prescribed under Section 27 of the Act of 1962 for refund of claim as per Notification No.102/2007 is wholly untenable for the reason that the refund of SAD would be claimed by the assessee subsequent to completion of the assessment in many cases, as the SAD would be refundable only on subsequent sale which is not in the control of the assessee. Merely for the reason that DEPB Scheme has lapsed, the assessee cannot be deprived of the benefit flowing from the exemption Notification No.102/2007 if the conditions specified therein are fulfilled. If the DEPB Scheme has lapsed, notwithstanding 4% SAD paid through DEPB scrips, the assessee is entitled to the benefit of exemption N/N. 102/2007 by claiming refund through cash - the substantial questions of law are answered in favour of the assessee and against the Revenue.
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