TMI Blog2018 (1) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... one year from the date of import as prescribed under the said Notification is barred by limitation - appeal dismissed - decided against appellant. - Appeal No. C/11187/2017-SM - Final Order No. A / 10144 /2018 - Dated:- 10-1-2018 - Dr. D. M. Misra, Member ( Judicial ) For Appellant: Mr. P.D.Rachchh ( Advocate ) For Respondent: Mr. S.N. Gohil ( A. R. ) ORDER Per : Dr. D. M. Misra This is an appeal filed against order-in-appeal No. MUN-CUTM-000-APP-588-16-17 passed by Commissioner of Customs (Appeals), Ahmedabad. 2. The appellant had filed refund application of 4% SAD paid at the time of import of the goods under Notification No. 102/2007-CUS dated 14.09.2007. The 4% SAD was paid in January 2014 and the refund cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d application filed after one year from the date of import as prescribed under the said Notification is barred by limitation. 5. Heard both the sides and perused the records. 6. The short issue involved in the present case is whether the refund claim of ₹ 19,55,354/- filed under the exemption Notification 102/2007-Cus dated 14.09.2017 filed on 06.01.2016 for imports made in January 2014 is barred by limitation. The Hon ble Bombay High Court after analyzing the principles and conditions of the Notification 102/2007-Cus dated 14.09.2007 and taking note of the judgment of Delhi High Court in Sony India Pvt. Ltd. (supra) observed as follows. 33. It is submitted that the Hon'ble High Court of Delhi has clearly opined and hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enables claiming a refund of duty (SAD) but the power to grant it is in the substantive law. Precisely, that is the case herein. Further, we find that there is an exemption granted and which is conditional. The exemption being conditional, it is not permissible to pick and choose convenient conditions of the exemption Notification and leave out those which to parties like the petitioners, appear to be onerous and excessive. We do not see how in the teeth of a clear provision in the exemption Notification can the assessee/petitioners before us contend that the exemption Notification is valid for everything else but when it comes to period of limitation therein, that is excessive or unfair, unjust and arbitrary. Once the exemption is conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. The exemption Notification does not impose any new condition as has been read into it. It grants the exemption from payment of duty conditionally. The exemption can be availed of provided the goods which are imported are subject to payment of duties which include all the duties that are referred to in both the enactment and the notification. If the import is for subsequent sale, then, that invoice must carry a stipulation that no credit for the additional duty of customs shall be admissible. The importer thereafter can file a claim for refund of the additional duty of customs paid on the imported goods before the expiry of one year from the date of payment of additional duty of customs. 34. Mr. Patil would submit that the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esire to brush it aside. The petitioners have accepted the position that if this exemption Notification had not been issued in exercise of the statutory power, no exemption could have been claimed at all. In these circumstances, merely because a condition is imposed to file a refund application and which is in the nature of a timebar or limitation, that cannot be held to be onerous, excessive and therefore ultra vires Article 14 of the Constitution. 35. We are of the view that it is entirely for the Central Government to take a decision with regard to exemption, the conditions to be imposed therein and whether those conditions ought to be fulfilled within a time limit. These are matters best left to the Central Government. The Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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