TMI Blog2016 (2) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... e present petitions were issued to streamline the procedure and to remove ambiguities, in fact what the circulars seek to amend is Notification No. 102/2007-Customs itself by introducing an additional condition for being entitled to refund, which condition does not find place in Notification No. 102/2007-Customs. Circular Nos. 6/2008, 10/2012 and 18/2013 issued by the CBEC could not have imposed an additional restriction for availing of the exemption in terms of the Notification No. 102/2007-Cus issued under Section 25(1) of the Act. An amendment to a notification issued in exercise of the powers under Section 25 (1) of the Act has to be brought about only by issuing another notification under that provision. Inasmuch as the circulars under challenge seek to impose an additional restriction for grant of refund of the SAD under Notification No. 102/2007-Customs, they are ultra vires of the Act and cannot be legally sustained. - refund to be allowed - Decided in favor of assessee. - W.P.(C) 4665/2014 & CM No.9309/2014, W.P.(C) 4666/2014 & CM No. 9311/2014, W.P.(C) 4667/2014 & CM No. 9313/2014 & W.P.(C) 4970/2014 & CM No. 9940/2014 - - - Dated:- 1-2-2016 - S.MURALIDHAR AND VIBH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 3. The notification stated that the jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above are fulfilled. 4. The importers were paying duties of customs including the SAD by using the duty entitlement pass book ( DEPB ) scrip. However, it appears that the Department was not processing the said applications for refund of SAD in terms of the above Notification No. 102/2007-Customs on the ground that the SAD had been paid, not in cash, but by utilising the DEPB scrip. The importers then made various representations. The Customs officials also sought clarification from CBEC on whether the refund could be granted where the initial payment of SAD had been made by utilising the DEPB scrips. As a result the CBEC issued Circular No.6/2008-Customs on 28th April 2008, clarifying in paras 3 and 7.2 as under: 3. Manner of refund and its receipt: Your attention is invited to the instructions communicated vide F. No. 354/129/2007-TRU, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acility of manual filing of Bills of Entry for utilizing the amount of re-credited CVD refund for payment of duty is also allowed. This facility has been extended up to 30-12-2010 as a one-time measure with a view to liquidate all such pendencies by that time . 7. Para 8 of Circular No. 27/2010-Customs issued on 13th August 2010 brought about a change inasmuch as it stated that the importers were to be advised to make initial payment of the countervailing duty (CVD) in cash. Para 8 of the said circular read as under: 8. It has also been decided that importers should be suitably advised that re-credit amount of CVD refund should be used for payment of BCD and CVD only and not for 4% CVD so as to avoid cascading of subsequent re-credit of 4% CVD in the relevant scrips. Further, the Board is of the view that in the interest of ensuring expeditious grant of refund of 4% CVD in cash, the importers may be advised to make the initial payment of 4% CVD in cash. 8. The time limit for utilizing the re-credited DEPB scrips was extended by issuing further circulars. On 29th March 2012, Circular No. 10/2012-Customs was issued stating that no re-crediting of DEPB scrips would be don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, the Petitioner fulfilled all the conditions for grant of refund in terms of Notification No. 102/2007-Customs. 13. The stand of the Department is that since the importers and exporters were put on notice that in order to seek refund they would have to make payment of the SAD only in cash and not by way of DEPB scrips, the Petitioner s applications for refund of SAD, to the extent it was not paid in cash, was rightly rejected. Reliance is placed on the very circulars which have been challenged by the Petitioner as ultra vires of the Act. It is in the above context the question arises whether the above circulars could have been issued restricting the entitlement of the importers and exporters to refund in terms of Notification No. 102/2007-Customs, without the said notification itself being amended. 14. Mr. Kamal Nijhawan, learned counsel for the Respondent, refers to Section 151A of the Act with regard to the power of the CBEC to issue such a circular bringing out a change in the procedure for availing of the exemption granted under Notification No. 102/2007-Customs. He submitted that from time to time circulars have been issued extending the time limit within which such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot whittle down the Exemption Notification and restrict the scope of the Exemption Notification or hit it down. In other words it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed . 18. In Modi Rubber Ltd. v. Union of India, 1978 (2) ELT (J127)( Del.), a similar issue was examined and this Court held as under: Further, it is quite open to the Government to grant an exemption subject to conditions. If the object of the Government in granting an exemption is to benefit the consumer by the reduction of the selling price of the goods, then the Government notification granting the exemption should itself say so. For instance, notification GSR 1089, dated 29th April, 1969 expressly stated that the benefit of the exemption was to be available only to those manufacturers who produce proof to the satisfaction of the Collector that such benefit has been passed on by them to whom they have sole the goods. Such a condition has to be a part of the exemption notification. For, the Notification is law . But, after enacting the law, such a condition cannot be imposed by administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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