TMI Blog2018 (6) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant - appeal allowed by way of remand. - C/20133 to 20146/2018; C/20186/2018; C/20279 to 20280/2018; C/20205/2018; C/20503/2018; C/20184/2018 - 20757 to 20776/2018 - Dated:- 30-5-2018 - SHRI S.S GARG, JUDICIAL MEMBER Shri T.R. Venkatram, CA For the Appellant Shri Madhupsharan, Asst. Commissioner(AR) For the Respondent Per: S.S GARG Appellant has filed these 20 appeals against different impugned orders whereby the Commissioner(Appeals) has rejected the appeals of the appellant on merits as well as on limitation. Since the issued involved in all the appeals is identical, all the appeals are being disposed of by this common order. The details of the all the 20 appeals are given herein below:- Sl. No. Appeal No. Period Refund claimed Amount rejected for paying the duty through DEPB scrips (Rs.) Amount rejected for other reasons (Rs.) 1. C/20133/2018 June 2010 3,78,969 1,12,245 19,009 2 C/20134/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er November 2012 6,67,113 1,37,142 13,321 19 C/20280/2018 August 2009 5,43,947 3,79,130 1,64,817 20 C/20205/2018 September 2009 5,67,473 2,64,139 1,11,133 2. Briefly the facts of the present case are that the appellants are engaged in the manufacture of electronic connectors, parts of connectors, electronic connector harness and other IT products classifiable under Chapter 85 of CETA, 1985 The appellants have filed various refund claims seeking refund of 4% CVD (SAD) paid through DEPB which have been either (i) refunded through DEPB credit or (ii) the same have been rejected for the reasons that the DEPB scrips are credited after 30/09/2013 as per Board circular No.18/2013-Cus. dt. 29/04/2013. The Commissioner(Appeals) after considering the submissions of the appellant rejected the appeals on the ground that the 4% SAD amount paid through DEPB scrips cannot be refunded by cash. Aggrieved by the said order, appellants have file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are contrary to the provisions of law are null and void. It is further submitted that the ratio as laid down in Midland Plastics relied upon by the Commissioner(Appeals) while rejecting the refund is not applicable in the facts and circumstances of the case. The learned consultant further submitted that the ratio of the Delhi High Court in the case of Allen Diesels cited supra are fully applicable in the present case and the said judgment has not been appealed against by the Revenue and the Commissioner(Appeals) has wrongly relied upon the decision of M.F. Rings Bearings Races Ltd. Vs. CC [2016(337) ELT 17 (Del.)] wherein the said judgment of the Hon'ble High Court of Delhi was stayed by the Hon'ble Supreme Court and the Commissioner(Appeals) has drawn the inference that impliedly the decision laid down in the case of Allen Diesels also stayed by the decision of the Hon'ble Supreme Court in the case of M.F. Rings. Further the learned consultant for the appellant submitted that the refund cannot be rejected on the ground that the complete set of documents were not filed till the date of withdrawal of DEPB scheme, He further submitted that the defects raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of issuing of instructions to officers of customs for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon or for the implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any prohibition/restriction for import or export of goods. The above provision does not envisage any amendment being made to an exemption notification that may have been issued in exercise of powers under Section 25(1) of the Act An amendment through notification can possibly be brought about only by again exercising the powers under Section 25(1) of the Act In this very context, it may be noticed that one instance of such amendment is the issuance of Notification No. 93/2008-Customs, dated 1st August/2008 under Section 25(1) of the Act to bring about an amendment to Notification No. 102/2007-Customs to introduce a time limit within which claims for refund of the SAD should be made by importers 16. Although it is sought to be projected that the circulars which are subject matter of the challenge in the present petitions were issued to streamline the procedure and to remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India, 2014 (301) E.L.T. 59 (Del.) it was observed as under: The word exemption as used in sub-section (1) to Section 25 can and should include extension or increase in time but cannot be stretched and expounded to include power of the Government to, by a circular, reduce the statutory time for a c/aim of refund stipulated under the principal enactment, i.e., the Customs Act, 1962 That would make the circular ultra vires the statute and beyond the scope of the Act, Rules, etc. Circulars might depart from the strict tenure of the statutory provision and might mitigate rigours of law thereby granting administrative relief beyond terms of the relevant provisions of the statute but the Central Government is not empowered to withdraw benefits or impose harsher or stricter conditions than those postulated by the statute. In later cases, circulars can supplant the law but not supplement the law. 20. Therefore, the legal position as explained in the above decisions makes it clear that the Circular Nos 6/2008, 10/2012 and 18/2013 issued by the C.B.E C could not have imposed an additional restriction for availing of the exemption in terms of the Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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