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2021 (12) TMI 684 - AT - CustomsRefund claim of Special Additional Duty (SAD), under Customs Act, in lieu of sales tax - rejection on the ground of time limitation - HELD THAT:- The facts are not in dispute and admittedly, the appellant 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 Section 27 was understood as not applying to SAD refund cases, even though it was in the statute book for many years. Yet, with the introduction of the circular and then the notification (No.93), the Customs authorities started insisting that such limitation period which was prescribed with effect from 1.8.2008 (by notification ) became applicable. Following the decision of the Hon’ble High Court of Delhi and hold that the appellant is entitled to the refund, as their right to claim refund of duty in terms of the Notification has accrued only when the sale took place. The findings of the Hon’ble Delhi 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 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 matters 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 allowed - decided in favor of appellant.
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