TMI Blog2015 (6) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... y is refundable only on subsequent sale of the goods, pursuant to import, no limitation period can be imposed for denying refund claim. Right to claim refund only accrues to importer once resale is made, which is entirely market dependable, given vagaries of market, the importer has limited control over the period of resale. To uphold limitation period starting from date of payment of duty (SAD), as prescribed in amending Notification No. 93/2008-Cus., would amount to allowing commencement of limitation period for refund claims before the right of refund has even accrued. So, the period of limitation cannot start prior to the date of crystallization to the right to refund and the right to refund is prescribed by the Notification No. 102/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and paid on all the imported goods sold to the consumer. The certificate further certified that SAD and customs duty has been paid by the importer and the burden of SAD has not been passed on to the buyer of the goods. Further, the amount of refund claim is shown in the Books of Account as amount due, and receivable from the Customs Department. As it appeared to the Revenue that the refund claim is time barred a show cause notice was issued. Vide Order-in-Original dated 24-9-2013, the refund claim was rejected recording the finding that the documents submitted by the importer have been attested by the Sr. Intelligence Officer, DRI vide their letter dated 7-8-2012, it was found that the document has been seized by the DRI under panchanama da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e importer has limited control over the period of resale. To uphold limitation period starting from date of payment of duty (SAD), as prescribed in amending Notification No. 93/2008-Cus., would amount to allowing commencement of limitation period for refund claims before the right of refund has even accrued. The Hon ble High Court was of the opinion that the refund provisions under the Customs Act are not applicable to duty levied under Section 3(5) of Customs Tariff Act, 1975. Thus, neither Section 27 nor the Notification under Section 25(1), such as amending Notification No. 93/2008 can be used to impose a limitation period on the right to claim refund of additional duty of Customs paid under Section 3(5) of the CTA. It was further observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), the question framed by the Hon ble Delhi High Court was - Can period of limitation for preferring refund claims, specified in the amending Notification No. 93/2008-Cus. be made applicable with retrospective effect, in absence of a limitation period in the original Notification No. 102/2007-Cus., in respect of goods imported prior to the issue of the amending notification. Accordingly, in view of the question framed, it is strongly contended by the learned AR that ruling of Delhi High Court in Sony India (supra) will not apply to the facts of the present appeal, more so because admittedly SAD have been paid during the period April, 2010 to Feb., 2011, which is post Notification No. 93/2008. There is no question of retrospect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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