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2022 (6) TMI 436 - HC - CustomsClaim for SAD refund - rejection on the ground of time limitation - additional duty was paid on 05.11.2013 and 30.10.2013 respectively, but the application seeking refund was submitted on 14.11.2014 (i.e), after the expiry of one year from the date of payment of duty - Section 3 (5) of the Customs Tariff Act, 1975 - HELD THAT:- It is to be recollected that the claim for refund of SAD duty made by the respondent / assessee, in respect of two Bills of Entry dated 05.11.2013 and 29.10.2013, was rejected, by the adjudicating authority, by order-in-original dated 14.07.2016 on the ground that the said application was filed after the expiry of one year from the date of payment of duty. However, the said order-in-original was set aside by the appellate authority, on the premise that the right to refund arises from the date of sale of the goods and therefore, limitation shall start from the date of sale of the goods and not from the date on which SAD has been paid, following the decision of the Delhi High Court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT]. The appellant submitted that the issue involved herein has already been decided by the Bombay High Court in M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT], wherein, after considering the decision of the Delhi High Court in SONY INDIA PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS [2014 (4) TMI 870 - DELHI HIGH COURT] it was categorically held that “the period of limitation as mentioned in the notification dated 14th September, 2007 as amended by the notification dated 1st August 2008 will operate with all the force and therefore, refund will be governed by the limitation as prescribed in the notification” - It is also fairly brought to the notice of this court that the aforesaid decision of the Bombay High Court in CMS Info Systems Ltd's case was put to challenge before the Hon'ble Supreme Court by filing Special Leave to Appeal (Civil)No.11646 of 2017 by the assessee and after granting leave, the same is now, pending consideration. This court, in the given facts and circumstances of the case, sets aside the orders-in-appeals passed by the Appellate Authorities and remands the matter to the Adjudicating Authority for fresh consideration of the application for refund in respect of two Bills of Entry dated 05.11.2013 and 29.10.2013, after providing opportunity of hearing to the parties, based on the outcome of the SLP filed against the order passed by the Bombay High Court in CMS Info System Limited, to be rendered by the Hon'ble Supreme Court. Appeal disposed off.
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