TMI Blog2018 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... d has held that limitation as prescribed under Section 27 of the Customs Act is not applicable in the case of refund of SAD - refund allowed - appeal allowed - decided in favor of appellant. - C/21209/2017-SM - Final Order No. 21814/2018 - Dated:- 29-11-2018 - SHRI S.S GARG, JUDICIAL MEMBER None For the Appellant Shri. Madhup Sharan, Assistant Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dated 28.04.2017 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has rejected the appeal of the appellant. Briefly the facts of the present case are that the appellant filed refund application on 05.01.2017 for an amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sony India Pvt. Ltd. Vs. Commissioner of Customs reported in 2014 (304) E.L.T. 660 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 refund claim. Further the Sony India Pvt. Ltd. decision has been upheld by the Hon ble Supreme Court. Further the Hon ble Delhi High Court in the case of Commissioner of Customs Vs. Gulati Sales Corporation reported in 2018 (360) E.L.T. 277 has also relied upon the decision in the case of Sony India Pvt. Ltd. and held that no time limit can be prescribed for the refund of SAD. Further I find that the Division Bench of the Delhi Tribunal in the case of Gulati Sales Corporation has relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 330) E.L.T. 414 (Bom.) 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 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 be applicable. Since SADC levied under Section 3(5) is refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, by importation of goods at cost or prices lower than what cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Section 37(2) has to be negatived in view of the positive languag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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