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2019 (5) TMI 722

cation No. 93/2008-Cus dated 01.08.2008 - HELD THAT:- If the entire notification is read harmoniously, there are various conditions such as, goods should be sold in the market VAT/ Sale tax should be paid on such sale etc. only thereafter, the appellant is entitled for refund. There is no time limit prescribed that the goods may be sold within one year from the date of payment of excise duty. Even though, the payment of custom duty is made but unless until the goods are sold, the refund does not arise, therefore, in one hand the time limit is prescribed i.e. one year from the date of payment of custom duty and in other hand, assessee is eligible to file refund claim only when the goods are sold and VAT/ Sales Tax was paid. These both condit .....

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Tri. -All.) Auto Dynamic Corporation 2018 (12) TMI 1194 - CESTAT-CHAN. Prim Tech General Trading Pvt. Ltd. 2018 (12) TMI 30-CESTAT-BAN. Madras Metals 2018 (11) TMI 192 - CESTAT CHENNAI Goyal Impex & Industries Ltd. 2018 (9) TMI 95 - CESTAT CHENNAI 3. On the other hand Sh. T.K. Sikdar, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. I have carefully considered the submission made by both the sides and perused the records. I find that the limited issue has to be decided is that if the refund claim under Notification No. 102/2007-Cus dated 14.09.2007 was filed beyond one year from the date of payment of custom duty but within one year from the date of sale of the goods, t .....

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n the goods were finally sold under the concerned Bill of Entry No. 93, dated 4-11-2009. Accordingly, the impugned order is set aside and the appeal is allowed. I further direct the Adjudicating Authority to grant the refund of the amount of ₹ 59,449/- with interest as per rules within a period of 60 days from the date of receipt of a copy of this order. In the case of Auto Dynamic Corporation (supra) Tribunal has observed as under: 7. On going through the arguments advanced by both the sides, I find that both sides have placed contradictory decisions of two High courts one in the case of CMS Info Systems (Supra) by the Hon ble Bombay High Court and two decisions of the Hon ble High Court of Delhi in the case of Sony India Pvt. Ltd. ( .....

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round of limitation, therefore, I hold that the refund claims filed by the appellants are within time. The same view has been taken by this Tribunal, in the case of Ghaio Mall and Sons (Supra) and in the case of Goyal Impex & industries Ltd. (Supra). Therefore, relying on the decision of this Tribunal in the matters cited above, I hold that the refund claims filed by the appellants are within time and they are entitled to refund claim. In view of the above, I set aside the impugned orders and allow the appeals with consequential relief. In the case of Prim Tech General Trading Pvt. Ltd. (supra) Tribunal has observed as follows: 4.Being aggrieved the appellant is in appeal before this Tribunal. The learned counsel for the appellant have .....

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thority to grant the refund of the amount of ₹ 59,449/- with interest as per rules within a period of 60 days from the date of receipt of a copy of this order. In the case of Madras Metals (supra) this Tribunal has passed following order: 6.Having considered the rival contentions and on perusal of the facts on record, I hold that the ld. Commissioner (Appeals) have erred in rejecting the refund claim on the ground of limitation relying on the Circular No. 06/2008-Cus., dated 28-4-2008 under Section 27 of the Customs Act, 1962. I further hold that limitation has to be computed on or after 30-11-2010, being the month of November, when the goods were finally sold under the concerned Bill of Entry No. 93, dated 4-11-2009. Accordingly, the .....

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(supra). In fact, the Division Bench in Riso India (Supra) could not have taken a different view without referring the matter to a Larger Bench in case they felt that the view expressed in the former decision required reconsideration. The Division Bench in Riso India (supra) observed that in Sony India (supra) "the Court was clear that the imposition of a period of limitation for the first time through a notification without statutory amendment' was legally impermissible." The words "without statutory amendment" were highlighted to qualify and not to be mis- understood, as if limitation period under section 27 applies. These words would not indicate and show that limitation period specified in Section 27 of the Act a .....

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d that the impugned order being in consonance with the ratio in the case of Sony India (supra), no case for interference is made out. No substantial question of law, therefore arises. The appeal is dismissed, without any order as to costs. 5. I also find that the New Delhi Bench of CESTAT in the case of M/s. River Tradex (supra) has dismissed Revenue s appeal after following the decision of Sony India Pvt. Ltd. (supra). 6. From the above discussions, I am of the considered view that the appellant is eligible for refund, despite the fact that its claim of refund was belated (by 10 days). Following the above ratio decidendi, I set aside the impugned order and allow appellant s claim for refund; & consequently allow the appeal with consequ .....

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