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2016 (11) TMI 677

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..... was held that the right of claim refund only accrues to the importer once sale is complete. To uphold a limitation period starting from the date of payment of duty as prescribed in the amending notification would amount to allowing commencing of limitation period for refund claim before the right of refund even accrued. The Hon’ble High Court held that imposition of a period of limitation for the first time without statutory amendment, through a notification, therefore, could not prevail. Accordingly, the Hon’ble High Court read down the amending notification to the extent that it imposed limitation period. Considering the above legal position settled by the Hon’ble Delhi High Court, the refund claims of the appellant are to be allowed. - .....

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..... nt practices in different customs formations. Some of them were processing refund claims considering the relevant date after finalization of provisional assessment. In such situation, it is pleaded that their claim was not entertained earlier in view of the pendency of provisional assessment. They should not be deprived of bonafide refund of duty as they have fulfilled all the conditions of the notification. 3. The learned AR submitted that the notification stipulates time period for filing refund claims. This was reiterated in the Board circular. Any claim filed beyond one year from the date of payment of duty cannot be entertained as per law. 4. We have heard both the sides and perused the appeal records. We find that the appellants .....

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..... r from the actual date of payment even, if the said payment made was pursuant to provisional assessment. The longer of the two periods i.e. the period specified under Section 27 or the notification dated 1st August, 2008 read with Circular No. 23/2010-Custom, dated 29th July, 2010 would be applicable. 39. To sum up : a. where the imported goods are released on payment of CVD on regular assessment, the application seeking refund can be made within one year of the payment of the CVD in terms of the notification dated 1st August, 2008 read with Circular No. 23/2010-Customs, dated 29th July, 2010. b. where the goods are released on provisional assessment followed by the final assessment, the application seeking refund can be made .....

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