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TMI Blog2014 (4) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant is involved in the import, distribution and sale of electronic items and IT products. The appellant had been clearing the imported goods on payment of the applicable custom duties including basic customs duty, additional customs duty and special additional customs duty ("BDC", "ADC" and "SADC" respectively). Notification No. 102/2007 dated 14.9.2007 ("original notification") exempted goods in the First Schedule of the Customs Tariff Act, 1975 ("CTA") from the whole of the SADC leviable under Section 3(5) of Customs Act when imported into India for subsequent sale on the fulfillment of certain conditions. 3. The appellant imported some items in between 1.12.2007 and 5.12.2007 under 9 Bills of Entry, paid the applicable customs duties by demand drafts dated. 4.12.2007 and 6.12.2007 and received stamped TR-6 challans on 14.12.2007, 18.12.2007 and 19.12.2007. Notification 93/2008-Cus dated 1.08.2008 ("amending notification") was then issued amending Notification no. 102/2007 to prescribe a time period of 1 year from date of payment for the filing of refund claims by an importer under the Notification. On 11.12.2008, the appellant filed a refund claim amounting to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrospective effect, the appellant is entitled to the refund of SADC. Learned counsel for the appellant relies on New India Insurance v. Shanti Misra, (1975) 2 SCC 840 and Electrofronts v. Union of India, 2003 (162) E.L.T. 1182 (Bom.) to argue that while the law of limitation in operation on the date of commencement of action is applicable to the cause, a new law of limitation can neither revive a dead remedy by providing for a longer limitation period, nor extinguish a right of action by providing a shorter limitation period. Counsel also relies on CCE, Jaipur v. Raghuvar (India) Ltd. (2000) 5 SCC 299, to argue that a law of limitation, because it creates and destroys rights must be specifically enacted and cannot be imported by implication by Courts when there is no express stipulated period. 6. The appellant also argues that the CESTAT erred in not complying with its own decision in United Chemicals Industries v. Com. C. Ex Kanpur, 2013 (289) ELT 333, Om Household Appliances Pvt. Ltd. v. C.C (Import), Nhava Sheva, [2012 (276) ELT 2591] and Audioplus v. Com. Customs (Imports) Raigad, [2011 (264) ELT 5161]. 7. Finally, without prejudice to its previous submissions, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like goods produced indigenously in India, as its Statement of Objects and Reasons would indicate. The exemption provided in the original notification issued in exercise of the power under Section 25(1) of the Customs Act is conditional upon subsequent sale, as can be seen from the conditions required to be fulfilled in order for an importer to avail the benefit of this exemption: "(a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer; (d) the importer shall pay on sale of the said goods appropriate sales tax or value added tax, as the case may be; (e) the importer shall, inter alia, provide copies of the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inapplicable to the duties levied under Section 3(5) of the CTA. Thus, neither Section 27 nor a notification under Section 25(1), such as the amending notification no. 93/2008-Cus dated 1.08.2008 can be used to impose a limitation period on the right to claim refund of additional duty of customs paid under Section 3(5). If a limitation period is sought to be imposed in respect of refund claims in a case where the importer advances a refund of SADC paid owing to having incurred sales tax/VAT liability on subsequent sale of goods, it must be introduced by legislation, given the expropriatory consequences of such a limitation period. 13. Customs duties, properly so charged, are those which every importer knows to be leviable on the importation of goods, of course subject to any exemption which may be provided. The regime under which customs duty can be recovered concers known events and details. Several contingencies with respect to rate of duty, removal of goods, their warehousing, etc are envisioned in the scheme of the Customs Act. However, in the case of SADC, which is a levy meant to offset any advantage, there is inherent a right to refund, once the importer shows that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 165(1) has been incorporated by pen and ink in Section 37(2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Section 37(1). If Section 165(1) was to be incorporated by pen and ink as Sub-section (2) of Section 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the CrPC relating to searches shall apply to the searches directed or ordered under Section 37(1) except that the power will be exercised by the Director of Enforcement or other officer exercising his power and he will be substituted in place of the Magistrate. The provisions of Sub-section (2) of Section 37 has not been cast in any such language. It merely provides that the search may he carried out according to the method prescribed in Section 165(1)." 16. Section 27 (1) of the Customs Act prescribes a time limit of expiry of "one year, from the date of payment of such duty or interest...". Section 27 (1B) lists out three contingencies when the one year limit applies with modified effect. That provision has the effect of shifting the date from which the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 01.08.2008 (by notification) became applicable. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. Khemka and Co. (Agencies) Private Ltd. v. State of Maharashtra, (1975) 35 STC 571 and other decisions are authority on the question that 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. 18. For these reasons, this Court holds that the amending notification must be read down to the extent that it imposes a limitation period. The question of law framed is therefore, answered in favour of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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