TMI Blog2018 (7) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts and Supreme Court which examine the constitutionality of the laws can do so. Unless the notification is amended or modified by a judicial pronouncement of the High Court having jurisdiction over this Bench or of the Supreme Court, the Tribunal is bound to follow the notification as it stands - In this case not only is there no judgment of the jurisdictional High Court but there are two conflicting judgments of two different High Courts. Under these circumstances, the proper course of action for me is to follow the notification. Time limitation applies - refund rightly rejected - appeal allowed - decided in favor of Revenue. - C/31110/2017, C/31111/2017 - Final Order No. A/30655 & 30656/2018 - Dated:- 2-7-2018 - Hon ble Mr. P. V. Subba Rao, Member ( Technical ) Shri Dass Thavanam, Superintendent/DR for the Appellant Shri S Thirumala, Advocate for the Respondent ORDER [Order Per : P. Venkata Subba Rao ] 1. These two appeals by the department pertain to the same respondent on the same issue and hence are being disposed of together. 2. Heard both sides and perused the records. 3. The issue in brief after filtering out unnecessary details in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Notification No.102/2007-CUS through subsequent Notification No.93/2008 was sought to be applied retrospectively. The specific question of law formulated by the Hon ble Delhi High Court as recorded in the aforesaid judgment was as follows: Can period of limitation for preferring refund claims specified in the amending Notification No.93/2008-CUS be made applicable with retrospective effect, in absence of a limitation period in the original Notification No.102/2007-CUS in respect of the goods imported prior to the issue of the amending notification? 6. After examining this issue the Hon ble High Court has answered the question in favour of the assessee and against the Revenue and allowed the appeal. It is his contention that since the present case involves import after the amending notification was issued and the ratio of the Sony India Pvt Ltd case does not apply. Therefore, the Learned Commissioner (Appeals) has erred in wrongly applying the ratio and holding that limitation of one year does not apply. It is his further submission that the Hon ble Apex Court has not dismissed the department s appeal against the judgment of the Hon ble High Court of Delhi on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 question that in matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or rules cannot prevail or be made, in such cases. The imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail. 18. For these reasons, this Court holds that the amending notification must be read down to the extent that it imposes a limitation period. The question of law framed is therefore, answered in favour of the assessee and against the Revenue. The appeal accordingly succeeds and is allowed without any order as to costs. 10. Thus the Hon ble High Court of Delhi had run down the amending notification to the extent it imposed a period of limitation for filing a refund claim. 11. On a specific query from the Bench, both Learned Departmental Representative and the Learned Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court had clearly dismissed the petition on the grounds of time bar, leaving the question of law open. More pertinently, the Hon ble High Court of Delhi had delivered the judgment in a particular factual matrix and the question which they sought to answer is whether the limitation of time introduced by Notification No.93/2008 amending the Notification No.102/2007 will have retrospective effect and they answered in negative. It is also true that in the same Order, the Hon ble High Court of Delhi had also mentioned that the notification needs to be run down to the extent that imposes limitation of time to file the refund claim. 17. On the other hand, the Hon ble High Court of Mumbai had taken a different view in the case of CMS Info Systems Ltd (supra) and it held very clearly that exemption Notification No.102/2007 is the only notification which entitles the importer to refund of SAD. But for the notification the importer is not entitled to refund of SAD. This notification is issued subject to many conditions including the condition that the refund application must be filed within one year from the date of payment of duty. The Hon ble High Court held that unless all the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
