TMI Blog2018 (10) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of additional duty due to the exemption flowing out of N/N. 102/2007 has to be filed within one year in view of the subsequent N/N. 93/2008-Cus which still holds good and also in view of Section 27 of the Customs Act, 1962 - appeal allowed - decided in favor of Revenue. - Customs Stay Application No. C/Stay/50824/2018 in Customs Appeal No. C/52393/2018 [DB] - FINAL ORDER NO. 53157/2018 - Dated:- 25-10-2018 - MR. C.L. MAHAR, MEMBER (TECHNICAL) And MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Rakesh Kumar, DR Present for the Respondent: None ORDER PER: RACHNA GUPTA Present is an Appeal against the Order of Commissioner of Customs (Appeals) bearing No. 180/17 dated 24.04.2018 as filed by the Department. 2. Facts relevant for the purpose are that the assessee, M/s J G Impex Pvt. Ltd. herein had filed a refund claim under special refund mechanism as provided for under the exemption Notification No. 102/2007-Cus dated 14.09.2007 (herein referred to as the said Notification) for an amount of ₹ 3,48,624/-. The claim is with respect to special additional duty of Customs (SAD) leviable under sub-section 5 of Section 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof even before Hon ble Supreme Court has been dismissed but Hon ble Apex Court has dismissed the Appeal only on the ground of limitation hence the question of law involved herein is still kept open. It is impressed upon that Notification No. 93/2008-Cus dated 01.08.2008 is the Notification amending the Notification No. 102/2007 vide which a time period of one year from the date of payment for the filing of refund claims by an importer has been introduced. Thus, the period for filing the impugned refund claim is clearly of one year. Since the refund claim in question was not filed within the said one year, the original Adjudicating Authority had rightly dismissed the same and the Commissioner(Appeals) has committed an error while allowing the assessee s claim. Order is accordingly prayed to be set aside and Appeal is prayed to be allowed. 5. After hearing, we are of the opinion as follows:- The claim herein is with respect to special additional duty of Customs as leviable under Section 3(5) of Customs Tariff Act, 1975. It is important to look into the said provision which reads as follows: Section 3 Levy of additional duty equal to excise duty, sales tax, local taxes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is: (c) The importer shall file a claim for refund of said additional duty of Customs paid on the imported goods with the jurisdictional Customs officer. This Notification stands amended vide Notification No. 93/2008 dated 01.08.2008 vide which a time period of one year from the date of payment for filing of refund claims by an importer under the aforesaid Notification was introduced. Commissioner (Appeals) has held that the amendment since introduced for the first time by a Notification but without a statutory amendment, the same cannot prevail. 6. In view of the above discussion, we are of the opinion that the moot question to be adjudicated in the present case is as to whether there is any time limit prescribed by law for filing the refund claim of additional duty of Customs as stands exempted vide the Notification No. 102/2007. No doubt, the said Notification is silent about any time period for filing the said claim. But the Notification exempts the goods in first schedule of Customs Tariff Act from being leviable to the additional duty of Customs. However, the Notification itself mandates the deposit of the said additional duty at the time of importation of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned. Otherwise also, on examination of relevant provision it appears that the provisions of limitation are excluded, it would nonetheless be still open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. This Tribunal in the case of Uttam Sucrotech International Pvt. Ltd. Vs. Union of India 2011 (264) E.L.T. 502 (Delhi) has held that the applicability of the provisions of limitation Act therefore is to be judged not from the terms of limitation Act but by the provisions of the concerned act. The Tribunal has gone to the extent of appreciating that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions even of Section 5 of the Limitation Act. The Hon ble Apex Court in the case Naseeruddin Vs. Sitaram Aggarwal A.I.R. 2003 (S.C.)1543 has held that in the absence of statutory provisions, no inherent powers of the court exists to condone the delay. It was also held that a statutory right has to be exercised in the mode, manner and limitation specified in the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer Vs. Tata Iron Steel Company 2001 (7) SCC 358 had noticed as follows:- A statute is an edict of the Legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the Court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises the difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one s thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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