TMI Blog2018 (11) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Per: S.S GARG The present appeal has been filed by the Revenue against the impugned order dated 08.06.2018 whereby the Commissioner (Appeals) has allowed the appeal of the assessee and directed the lower authority to refund the Special Additional Duty (SAD) amount. Briefly the facts of the present case are that the respondent had imported Dried Raw Cashew during the period June to September 2016 and accordingly paid the Customs duty including SAD totaling to ₹ 21,07,738/- (Rupees Twenty One Lakhs Seven Thousand Seven Hundred and Thirty Eight only). Subsequently they filed refund claim on 17.11.2017 seeking refund of SAD in terms of Notification 102/2007 dated 14.09.2007. The said refund claim was rejected by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court. He further submitted that Section 27 of the Customs Act is very much applicable to the cases of refund of SAD amount. He also relied upon the decision of the Bombay High Court in the case of Commissioner of Customs Vs. DSM Sinochem Pharmaceuticals (I) Pvt. Ltd. reported in 2018 (359) E.L.T. 509 (Bom.). 4. On the other hand the learned counsel for the respondent-assessee submitted that this issue has been settled by the Delhi High Court in the case of Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi reported in 2014 (304) E.L.T. 660 (Del.) wherein it was held that SAD is refundable only on subsequent sale i.e. the point at which Sales Tax/VAT liability arises, no limitation period can be imposed for filing ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o relied upon the decision in the case of Sony India Pvt. Ltd. and has held that limitation as prescribed under Section 27 of the Customs Act is not applicable in the case of refund of SAD. Further I find that the Division Bench of this Tribunal also in the case of Gulati Sales Corporation relied upon the Sony India Pvt. Ltd. and has held that the limitation of one year as prescribed in Section 27 of the Customs Act is not applicable. It is pertinent to reproduce the findings of the Delhi High Court in the case of Sony India Pvt. Ltd. wherein the Hon ble High Court has held as under: 12. The provisions of the Customs Act on the rules and mechanism for refund is incorporated by reference into the CTA only so far as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operly so charged, are those which every importer knows to be leviable on the importation of goods, of course subject to any exemption which may be provided. The regime under which customs duty can be recovered concerns known events and details. Several contingencies with respect to rate of duty, removal of goods, their warehousing, etc. are envisioned in the scheme of the Customs Act. However, in the case of SADC, which is a levy meant to offset any advantage, there is inherent a right to refund, once the importer shows that the goods have been sold or the other taxation incident, i.e. payment of VAT occurs. This duty was imposed as India s response to offset any advantage that importers might secure, by way of a non-discriminatory levy, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f payment of duty (SAD): Dr. Partap Singh Anr. v. Director of Enforcement, Foreign Exchange Regulation Act Ors., 1985 (3) SCC 72 is an authority for the proposition that the use of the phrase so far as may be in a later statute, with reference to provisions in an earlier statute, means that the provisions of the referred (earlier) statute are to be followed to the extent possible . The Supreme Court, in that case turned down the argument that the letter and content of Section 165 of the Code of Criminal Procedure was to be followed in Foreign Exchange Regulation Act proceedings, by virtue of Section 37(2) of that Act. It was held, crucially that: The submission that Section 165(1) has been incorporated by pen and ink in Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
