TMI Blog2018 (10) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... s not sustainable rather is opined to be legally erroneous. Otherwise also, the said amendment came into force w.e.f. 01.08.2008 that too in accordance of another statutory provision, i.e. Section 25(4) of the Customs Act. We cannot rule out that the Notification No. 93/2008 came into existence to align the statutory provision with the Notification which was silent as far as the period of limitation for the purpose as mentioned therein is concerned. 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. The refund 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 Notification No. 93/2008-Cus which still holds good and also in view of Section 27 of the Customs Act, 1962 - refund rightly rejected - appeal dismissed - decided against Revenue. - Customs Stay Application No. C/Stay/50823/2018 in Customs Appeal No. C/52392/2018[DB] - FINA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 3(5) of the Customs Tariff Act. Accordingly, the Appeal of asseesse was allowed accepting the refund claimed. Department being aggrieved is in Appeal before us. 3. We have heard Shri Rakesh Kumar, Ld. DR for the Department/ appellant. However none is present for the respondent. He therefore hereby proceed to decide the Appeal ex-parte considering defendant. 4. It is submitted that the Commissioner(Appeals) has based his Order on the decision of Hon ble High Court of Delhi in the matter of M/s Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi 2014 (304) ELT 660 (Del.) and though the Appeal whereof 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 ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. This Notification exempts the goods falling within the first schedule to the Customs Tariff Act, 1975 when imported into India for subsequent sale, from the whole of the additional duty of Customs leviable thereupon in accordance of the above mentioned Section 3(5) of Customs Tariff Act. However, subject to such conditions as mentioned in the Notification itself in para 2 thereof, the first condition reads as follows: (a) The importer of the said goods shall pay all duties including the additional duty of Customs leviable thereon, as applicable at the time of importation of goods. The other relevant condition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the provision makes it clear that statute has not distinguished the nature of duty or interest, the refund whereof is claimed. Hence, even if we do not look into the amended Notification No. 93/2008, the period of limitation as applicable for filing the refund claim under Notification 102/2008 will otherwise be a period of one year in accordance of the aforesaid Section 27 of Customs Act. Thus, we cannot rule out that the Notification No. 93/2008 came into existence to align the statutory provision with the Notification which was silent as far as the period of limitation for the purpose as mentioned therein is concerned. 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 limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case that Notification 93/2008 has been repealed. In absence thereof also, as already discussed above, Section 27 of Customs Act prescribes a period during which refund of any type can be claimed. The Hon ble Apex Court in a recent decision Commissioner of Customs (Import Mumbai) Vs. M/s Dilip Kumar Co. 2018 TIOL 302 (S.C.)-Cus-CB has held that an exemption Notification has to be strictly construed, i.e. if the person claiming exemption does not fall strictly within the letter of Notification, he cannot claim the exemption. The Hon ble Apex Court while relying upon its previous decision in the case District Mining 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 diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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