TMI Blog2019 (10) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... refunds under the notification. Appeal dismissed - decided against Revenue. - C/20842/2019-SM - Final Order No. 20884/2019 - Dated:- 25-10-2019 - SHRI S.S GARG, JUDICIAL MEMBER Shri Madhupsharan, Asst. Commissioner(AR) For the Appellant Shri Arun Chandran, Consultant For the Respondent ORDER The present appeal filed by the Revenue is directed against the impugned order dt. 10/05/2019 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the Department and upheld the Order-in- Original. 2. Briefly the facts of the present case are that the respondents M/s. Octel Networks Pvt. Ltd. filed two refund claims towards the Additional Duty of Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue and upholding the Order-in-Original is not sustainable in law. He further submitted that the Commissioner(Appeals) has wrongly relied upon the Notification No.102/2007 and wrongly held that Section 27 is not applicable. He further submitted that Commissioner(Appeals) has relied upon the decision of the Tribunal in the case of Purab Textiles Pvt. Ltd. Vs. CC(Imports) [2015(330) ELT 414 (Tri. Mum.)] but the said decision has been set aside by the Hon ble Bombay High Court which is reported in 2019(365) ELT 285. He further submitted that on the same issue, the Bombay High Court in the case of CMS Info Systems Ltd. Vs. UOI [2017(349) ELT 236 (Bom.)] has elaborated the provisions of refund, power to grant the same and distinguished the Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be applicable. Since SADC levied under Section 3(5) is refundable only on subsequent sale (i.e. the point at which sales tax/VAT liability arises), 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 exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory levy, by importation of goods at cost or prices lower than what could be obtained by domestic manufacturers. A discriminatory tax could not have been levied, given 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by pen and ink in Section 37(2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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