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TMI Blog2018 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Four only) as 4% additional duty refund as per Notification No. 102/2007 Cus. against Bill of Entry No. 3723421 dated 28.12.2015. The original authority vide order No. 180/2017 dated 14.02.2017 rejected this refund claim of the appellant on the ground that the refund claim filed by the appellant is time-barred as per Customs Notification 93/2008 dated 01.08.2008 amending Notification 102/2007. Aggrieved by the said order, appellant filed appeal before the Commissioner who also rejected the appeal of the appellant. Hence the present appeal. 2. None appeared on behalf of the appellant and Shri. Madhup Sharan, AR appeared on behalf of the Revenue. 3. I have heard the learned AR and have gone through the grounds of appeal filed by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is not barred by limitation of time. The learned AR defended the impugned order by relying upon the following decisions: a. CMS Info Systems Ltd. Vs. Union of India - 2017 (349) E.L.T. 236 (Bom.) b. Commr. of Cus., NS-III Vs. DSM Sinochem Pharmaceuticals (I) Pvt. Ltd. - 2018 (359) E.L.T. 509 (Bom.) c. M.S. Metals Vs. CC (Preventive), Patna - 2017 (345) E.L.T. 113 (Tri.-Kolkata) 3.1. Learned AR further submitted that the Hon'ble Bombay High Court in the case of CMS Info Systems has distinguished the decision of the Delhi High Court in the case of Sony India Pvt. Ltd. and has held that limitation is applicable in the case of SAD refund. 4. After considering the submission of the AR and the grounds of appeal of the appellant and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the opinion of this Court that no limitation period can possibly be imposed for advancing a refund claim. This is because the right to claim refund only accrues to the importer once sale, an entirely market driven event, is complete. Given the vagaries of the market, the importer has limited control over when the sale is complete. To uphold a limitation period starting from the date of payment of duty, as prescribed in the amending notification, would amount to allowing the commencement of a limitation period for refund claims before the right of refund has even accrued. To this extent, this Court is of the opinion that the refund provisions under the Customs Act are inapplicable to the duties levied under Section 3(5) of the CTA. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en India's obligations as a participant in the WTO and having regard to its treaty obligations. 14. The expression "so far as may be" in this context, under Section 27 is significant as well as instructive. The levy under Section 3(5) is conditional upon the Central Government's opinion that it is necessary to "counter-balance the sales tax, value added lax, local lax or any other charges for the time being leviable on a like article."; the rate of duty - where more than one levy exists, would be the highest of such rates and the terms of imposition of SADC would be spelt out in the notification. In this case, the regime existing before the notification of 2008 did not specify any period of limitation - and perhaps advisedly so. Some cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rches under Section 37(1). If Section 165(1) was to be incorporated by pen and ink as sub-section (2) of Section 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the CrPC relating to searches shall apply to the searches directed or ordered under Section 37(1) except that the power will be exercised by the Director of Enforcement or other officer exercising his power and he will be substituted in place of the Magistrate. The provisions of sub-section (2) of Section 37 has not been cast in any such language. It merely provides that the search may he carried out according to the method prescribed in Section 165(1)." Since the Division Bench of the Tribunal has relied upon the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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