TMI Blog2017 (11) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... twithstanding the said understanding and their Circular, now seeks to contend and urge to the contrary. Appeal dismissed - decided against appellant. - CUSAA 48/2017 - - - Dated:- 7-11-2017 - MR. SANJIV KHANNA MS. PRATHIBA M. SINGH JJ. Appellant Through: Mr. Sanjeev Narula, Sr. Standing Counsel for customs (CBEC) with Mr. Abhishek Ghai, Advocate. Respondent Through: Mr. Tarun Gulati, Advocate with Mr. Abeer Kumar and Mr. Vasu Nigam, Advocates. SANJIV KHANNA, J. (ORAL): Commissioner of Customs (Import) vide present appeal under Section 130 of the Customs Act, 1962 (Act, for Short) impugns the final order dated 2nd January, 2017 passed by the Custom, Excise and Service Tax Appellate Tribunal (CESTAT) in appeal No. C/268/2011. 2. The impugned order allows the appeal preferred by the respondent- M/s Gulati Sales Corporation and directs refund of Special Additional Duty (SAD) of ₹ 13,72,436/- under Notification No. 102/2007-CUS dated 14th September, 2007. 3. In our opinion, the issue is covered by the decision of the Delhi High Court in the case of Sony India Private Limited versus Commissioner of Customs, 2014 (304) E.L.T. 660 (Delhi) (hereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Foreign Exchange Regulation Act Ors., 1985 (3) SCC 72 is an authority for the proposition that the use of the phrase so far as may be in a later statute, with reference to provisions in an earlier statute, means that the provisions of the referred (earlier) statue are to be followed to the extent possible . The Supreme Court, in that case turned down the argument that the letter and content of Section 165 of the Code of Criminal Procedure was to be followed in Foreign Exchange Regulation Act proceedings, by virtue of Section 37 (2) of that Act. It was held, crucially that: The submission that Section 165(1) has been incorporated by pen and ink in Section 37(2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Section 37(1). If Section 165(1) was to be incorporated by pen and ink as Sub-section (2) of Section 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the Cr.PC. relating to searches shall apply to the searches directed or ordered under Section 37(1) except that the power will be exercised by the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of payment of duty, within which the refund could be filed by any person. It is also clarified that the importers would be entitled to refund of duties only in respect of quantities for which the prescribed documents are made available and the claims submitted within the maximum prescribed time of one year. Unsold stocks would not be eligible for refunds. Notification No 93/2008 dated 01.8.2008 was issued prescribing the period of limitation as one year from the date of payment of additional duty of Customs. 17. Plainly, therefore, Section 27 was understood as not applying to SAD cases, even though it was in the statute book for many years. Yet, with the introduction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific provision of section 27 being made applicable in the said notification, the time limit prescribed in this section would not be automatically applicable to refunds under the notification. Further, it was also represented that the goods imported may have to be dispatched for sale to different parts of the country and that the importer may find it difficult to dispose of the imported goods and complete the requisite documentation within the normal period of six months. Taking into account various factors, it has been decided to permit importers to file claims under the above exemption upto a period of one year from the date of payment of duty. Necessary change in the notification is being made so as to incorporate a specific provision prescribing maximum time limit of one year from the date of payment of duty, within which the refund could be filed by any person. It is also clarified that the importers would be entitled to refund of duties only in respect of quantities for which the prescribed documents are made available and the claims submitted within the maximum prescribed time of one year. Unsold stock would not be eligible for refunds. 4.2 It is also clarified that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment were highlighted to qualify and not to be mis- understood, as if limitation period under section 27 applies. These words would not indicate and show that limitation period specified in Section 27 of the Act applies to SAD refunds. Thereafter, the appeal of the Revenue in Riso India (supra) was dismissed. 9. In terms of Notification No. 102/2007 dated 14th September, 2007, an importer is entitled to refund of SAD, which is levied at the time of importation after he files documents to show that appropriate sales tax or value added tax has been paid. It may be noted that the purpose of imposing SAD is to protect and ensure collection of appropriate sales tax or value added tax, payable on the imported goods. This is paid upfront at the time of import. SAD is not credited and set off from the sales tax and value added tax, which are State taxes. SAD is, therefore, refundable to the importer after evidence with regard to payment of appropriate sales tax or value added tax is produced. The documents and papers have to be produced before the custom authorities, checked and verified, before refund is issued. It goes without saying that the intent is that no double duty/tax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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