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2015 (6) TMI 998 - CESTAT MUMBAI

2015 (6) TMI 998 - CESTAT MUMBAI - 2015 (330) E.L.T. 414 (Tri. - Mumbai) - Refund claim - Period of limitation as per Notification No. 102/2007 as amended by Notification No. 93/2008 and also in terms of Circular No. 16/2008 - Appellant imported certain goods for resale and deposited the customs duty including SAD. As the appellant was entitled to refund of SAD deposited at the time of import, it filed refund claim which was rejected by the Revenue as time-barred - Held that:- relying on the jud .....

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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. 102/2007. Therefore, the appellant's refund claim is not time-barred. - Matter rema .....

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-2010 to 21-2-2011. Pursuant to the resale made by the appellant and payment of sales tax, the appellant as per the scheme of the Act and the Rules being entitled to refund of the SAD deposited at the time of import, applied for refund on 27-9-2012 along with duplicate copy and enclosed copy of Bill of Entry duly attested by the Sr. Intelligence Officer, DRI, Surat, Xerox copy of TR-6 challan for payment of SAD in full, original invoices of the sale of the imported goods with respect to which th .....

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D 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 attes .....

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from the date of SAD/TR-6 challan. It is further recorded that the documents were seized under Panchanama dated 27-3-2012 which is after a period of one year from the date of last payment on 21-2-2011, the refund claim was held to be time barred in terms of Notification No. 102/2007 as amended by Notification No. 93/2008 and also in terms of Circular No. 16/2008. 2. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals) who vide the impugned order was pleased to .....

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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. The Hon ble High Court was of the .....

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re the importer claims the refund of SAD, 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. It was further observed that in a case of SAD, which is a levy meant to offset any advantage (in lieu of Sales Tax), there is an inherent right to refund, once the importer shows that the goods have been sold or the other taxation incident i.e. payment of VAT occurs. It was f .....

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rcular. Accordingly, the Hon ble High Court held that the imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail. Accordingly, the appellant prays for allowing the appeal with consequential benefit. 4. The learned AR for the Revenue relies on the impugned order. Learned AR further states that in the case of Sony India (supra), the question framed by the Hon ble Delhi High Court was - Can period of limitation .....

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