TMI Blog2014 (4) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... lying upon Khemka and Co. Private Ltd. v. State of Maharashtra [1975 (2) TMI 91 - SUPREME COURT OF INDIA] - In 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 cases - The imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail - This Court holds that the amending notification must be read down to the extent that it imposes a limitation period - Decided in favour of assesse. - CUSAA 3/2014 & C.M. No.829/2014 - - - Dated:- 16-4-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Petitioner : Mr. Tarun Gulati, Mr. Rony. O. John Mr. Shashi Mathews, Advocates. For the Respondent : Mr. Satish Kumar, Standing Counsel. ORDER Mr. Justice S. Ravindra Bhat 1. This is an appeal under Section 130 of the Customs Act, 1962, against the order dated 19.06.2013 of the Customs Excise and Service Tax Appellate Tribunal ( CESTAT ) dismissing the appellant company s appeal chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR-6 Challan was wrongly taken as the date of payment of duty by the appellant. The claim filed by the appellant was not within one year from the date of payment of duty as per Circular 6/2008 and accordingly the refund amount claimed under the said bills of entry was held to be liable to be rejected. 4. On appeal against this order before the Commissioner of Customs (Appeals) ( CC(A) ), the appellant sought to argue first, that there was no time limit in the original notification, second, the period of one year should be computed from the date in the TR-6 challan, and that the time limit of 1 year as applied by the respondent was bad in law, third, that the Board Circular no. 6/2008-Cus dated 28.04.2008 clarifies that the time period of 6 months as under Section 27 of the Customs Act does not automatically apply to the SADC refund applications under the original notification. The CC(A) rejected the appeal on the ground that the dates of payment of duty provided by the appellant in respect of 4 bills of entry were incorrect. The CESTAT upheld the findings of the CC(A) in the appeal on the ground that the refund claims were time-barred having been filed beyond a period of 1 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government is satisfied that it is necessary in the public interest to levy on any imported article [whether on such article duty is leviable under sub-section (1) or, as the case may be, sub-section (3) or not] such additional duty as would counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India, it may, by notification in the Official Gazette, direct that such imported article shall, in addition, be liable to an additional duty at a rate not exceeding four per cent of the value of the imported article as specified in that notification. Explanation.--In this sub-section, the expression sales tax, value added tax, local tax or any other charges for the time being leviable on a like article on its sale, purchase or transportation in India means the sales tax, value added tax, local tax or other charges for the time being in force, which would be leviable on a like article if sold, purchased or transported in India or, if a like article is not so sold, purchased or transported, which would be leviable on the class or description of articles to which the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow a refund of the SADC paid under Section 3(5) of the CTA because the importer has suffered the incidence of SADC (meant to counter-balance sales tax/VAT leviable on a like article in India) on import, and then of actual sales/VAT on sale of these imported goods. In this light, it is necessary to examine the applicability of any limitation period, whether under the amending notification or under Section 27 of the Customs Act. 11. Section 3(8) of the CTA states: (8) The provisions of the Customs Act, 1962(52 of 1962) and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act. 12. The provisions of the Customs Act on the rules and mechanism for refund is incorporated by reference into the CTA only so far as may be applicable Since SADC levied under Section 3(5) is refundable only on subsequent sale (i.e. the point at which sales tax/VAT liability arises), it is the opinion of this Court that no limitation period can possibly be imposed for advancing a refund claim. This i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government s opinion that it is necessary to counter-balance the sales tax, value added tax, local tax or any other charges for the time being leviable on a like article.. ; the rate of duty where more than one levy exists, would be the highest of such rates and the terms of imposition of SADC would be spelt out in the notification. In this case, the regime existing before the notification of 2008 did not specify any period of limitation and perhaps advisedly so. Some customs authorities apparently started applying Section 27, drawing inspiration from Section 3(8) which led to confusion. In Notification No.102/2007-Customs dated 14.09.2007 there was no period of limitation; by Circular No.6/2008-Customs, an amending notification providing for one year period from the date of payment of the additional duty of customs was issued, through Notification No.93/2008-Customs dated 1.8.2008, amending Para 2(c) of the 2007 Notification. The net effect of these was that a one year period was insisted upon for refund applications. That period was calculable from date of payment of duty (SAD). Dr Partap Singh Anr v. Director of Enforcement, Foreign Exchange Regulation Act Ors., 1985 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Time-Limit: 4.1 In the Notification No. 102/2007-Customs, dated 14-9-2007, no specific time - limit has been prescribed for filing a refund application. Under the circumstances, a doubt has been expressed that whether the normal time-limit of six months prescribed in Section 27 of the Customs Act, would apply. 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. Further, it was also represented that the goods imported may have to be dispatched for sale to different parts of the country and that the importer may find it difficult to dispose of the imported goods and complete the requisite documentation within the normal period of six months. Taking into account various factors, it has been decided to permit importers to file claims under the above exemption upto a period of one year from the date of payment of duty. Necessary change in the notification is being made so as to incorporate a specific provision prescribing maximum time-limit of one year from the date of payment of duty, within which the refund could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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