TMI Blog2015 (10) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption) & 22556 of 2015 (Delay) - - - Dated:- 7-10-2015 - Dr S. Muralidhar And Vibhu Bakhru, JJ. For the Petitioner : Mr Satish Kumar, Senior Standing Counsel For the Respondent : None JUDGMENT Dr S Muralidhar, J. CM No.22556/2015 (Delay) 1. For the reasons stated in the application, the delay of 10 days in filing the appeal is condoned. 2. The application stands disposed of. CM No.22555/2015 (Exemption) 3. Allowed, subject to all just exceptions. 4. The application stands disposed of. CUSAA 20/2015 CM No.22554/2015 (Stay) 5. The appeal under Section 130 of the Customs Act 1962 ('Act') is directed against the final order dated 21st January, 2015 passed by the Customs, Excise Service Tax Appellate Tribunal (CESTAT) in Appeal No. C/4014/2012. 6. The substantial question of law that is sought be urged by the Principal Commissioner of Customs in this appeal is whether an importer is entitled to interest beyond the period of three months under Section 27A of the Act on refund of Special Additional Duty (SAD) under Notification No. 102/2007 issued under section 25 of the Act in the absence of a specific provision for payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court in Sony India Pvt. Ltd. v. The Commissioner of Customs 2014 (304) E.L.T. 660 (Del) where, the words so far as may be occurring in Section 3(8) of the Customs Tariff Act 1975 (CTA) were interpreted to mean to the extent possible in the context of considering whether Section 27 of the Customs Act, 1962 read with certain amending notifications concerning the limitation period within which a refund application had to be made under Notification No. 102/2007. 11. It requires to be noticed that the word duty has been defined under Section 2 (15) of the Act as a duty of customs leviable under this Act . The levy of additional duty is provided under Section 3 of the CTA. Further Section 3 (8) which incorporates by reference the provisions of the Act, reads thus: (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. As a result, the provisions of the Act in so far as they relate refund of duty and inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of adjustment of duty after the final assessment thereof or in case of re-assessment, from the date of such re-assessment.] (2) If, on receipt of any such application, the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] is satisfied that the whole or any part of the 3[duty and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund: Provided that the amount of [duty and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Customs or Deputy Commissioner of Customs] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to- (a) the [duty and interest, if any, paid on such duty], paid by the importer [or the exporter, as the case may be], if he had not passed on the incidence of such 1[duty and interest, if any, paid on such duty] to any other person; (b) the [duty and interest, if any, paid on such duty], on imports made by an individual for his personal use; (c) the [duty and interest, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government, by notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty . 14. Notification no.102/2007 under Section 25(1) of the Act exempts goods described in the First Schedule of the CTA from the whole of the additional duty of customs leviable under Section 3 (5) of the CTA. The conditions on which exemption would be granted is specified in the said notification. With the purported object of clearing the confusion regarding the time limit within which a refund can be made in terms of Notification No.102/2007, the CBEC issued Circular No.6/2008-Customs dated 28th April, 2008. This Circular noted that the normal time limit under Section 27 of the Act was six months. However, the question that arose was whether the said time limit would automatically apply to refunds made under Notification No.102/2007. The circular clarified in para 4.3 as under: 4.3. With the extension of time limit and the requirement to file claims on a monthly basis, Board feels that the number of refund claims should be manageable for disposal within the normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduction 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 assessee and against the revenue. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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