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2019 (5) TMI 722

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..... e 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 conditions are contrary, therefore, considering the overall notification harmoniously, one year should be reckoned from the date of sale of the goods. The refund claim could not 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 Bri .....

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..... e 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, the appellant is entitled for the refund or otherwise. I find 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 unles .....

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..... e 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 there are contrary views of the Hon ble High Courts, in that case this Tribunal is at the liberty to decide the issue ignoring the decisions of the Hon ble High Courts on merits of the case itself as held by this Tribunal in the case of M/s Maheshwari Solvent Extraction Ltd. Vs. Commission .....

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..... 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 urged that the finding of ld. Commissioner regarding time-barred is directly in the teeth of the findings of Hon ble Delhi High Court in Sony India Pvt. Ltd. v. Commissioner of Central Excise reported at 2014 (304) E.L.T. 660 (Delhi), wherein the Hon ble 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 subje .....

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..... 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 an another judgment of this Tribunal on the identical issue in the case of Goyal Impex & Industries Ltd. this Tribunal has considered the issue as under: 4. I have considered the rival contentions and .....

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..... gally 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 protect and ensure collection of appropriate sales tax or value .....

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