TMI Blog2019 (5) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have been rejected on time bar - appeal allowed - decided in favor of appellant. - Customs Appeal No. 12252 of 2018-SMC - A/10816/2019 - Dated:- 9-5-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri Dipak Kumar (Cons.) for Appellant Shri T. K. Sikdar (A.R.) for Respondent ORDER PER: RAMESH NAIR Brief facts of the case are that the appellant have filed refund claim for an amount of ₹ 12,52,776/- in terms of Notification No. 102/2007-Cus dated 14.09.2007 in respect of special additional duty paid at the time of clearances of goods under 5 bills of entry. The refund claim was partly allowed and partly rejected on the ground that the refund claim was filed after one year from date of payment of Customs (SAD) in terms of amended Notification No. 93/2008-Cus dated 01.08.2008. 2. Sh. Deepak Kumar, Ld. Consultant appearing on behalf of the appellant submits that though the refund claim was filed after one year from the date of payment of SAD but it was filed within one year from date of sale of goods, therefore, the refund should not have been rejected on time bar. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. (Supra) and Gulati Sales Corporation (Supra), the latest decision is of the Hon ble Delhi High Court in the case of Gulati Sales Corporation (Supra), before me. Moreover, when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court upheld that limitation cannot start to run before the right to claim benefit arises or created. In the facts of the present case, admittedly, refund is allowable on resale of the imported goods subject to payment of Sales Tax. As admittedly the goods of the import consignment was sold during the period September, 2010 to November, 2010 the limitation cannot start to run prior to 30-11-2010 and from such date, the claim made on 4-3-2011, is within the limitation of one year. Accordingly, he prays for allowing the appeal with consequential benefits to the appellant. 5. Heard the ld. AR for Revenue, who relied on the impugned 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. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed in Riso India (supra) and Sony India (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 applies to SAD refunds. Thereafter, the appeal of the Revenue in Riso India (supra) was dismissed. 9. In terms of Notification No. 102/2007 dated 14 th September, 2007, an importer is entitled to refund of SAD, which is levied at the time of importation after he files documents to show that appropriate sales tax or value added tax has been paid. It may be noted that the purpose of imposing SAD is to prot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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