9911796707
TMI Blog2019 (10) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... l Duty of Customs leviable under sub-section 5 of Section 3 of the Customs Tariff Act paid on imported goods which were subsequently sold in the domestic market on payment of sales tax/VAT. The refund was sanctioned partially, rejecting the rest on the ground of time bar, excess claim and non-production of records. On the respondent's appeal, the Commissioner(Appeals) remanded the matter back to the adjudicating authority to pass fresh orders taking into consideration the documents submitted by the party and the time limit for filing the refund to be considered from the time of sale of goods and not from the time of payment of the duty. At this stage, the respondent approached the adjudicating authority for refund and the Department filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court judgment in the case of Sony India Pvt. Ltd. [2014(304) ELT 660 (Del.)]. 5. On the other hand, the learned consultant for the respondent submitted that the issue has been settled by the Delhi high Court in the case of Sony India Pvt. Ltd. cited supra wherein it was held that SAD is leviable only on subsequent sale only on the point of sales tax / VAT liability arises and no limitation period can be imposed for filing the refund claims. He further submitted that subsequently, the Delhi High Court in the case of CC Vs. Gulati Sales Corporation [2018(360) ELT 277] has also relied upon the decision of Sony India Pvt. Ltd. and held that no time limit can be prescribed for refund of SAD. The learned consultant further relied upon the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the refund provisions under the Customs Act are inapplicable to the duties levied under Section 3(5) of the CTA. Thus, neither Section 27 nor a notification under Section 25(1), such as the amending Notification No. 93/2008-Cus., dated 1-8-2008 can be used to impose a limitation period on the right to claim refund of additional duty of customs paid under Section 3(5). If a limitation period is sought to be imposed in respect of refund claims in a case where the importer advances a refund of SADC paid owing to having incurred sales tax/VAT liability on subsequent sale of goods, it must be introduced by legislation, given the expropriatory consequences of such a limitation period. 13. Customs duties, properly so charged, are those whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me existing before the notification of 2008 did not specify any period of limitation - and perhaps advisedly so. Some customs authorities apparently started applying Section 27, drawing inspiration from Section 3(8) which led to confusion. In Notification No. 102/2007-Cus., dated 14-9-2007 there was no period of limitation; by Circular No. 6/2008-Cus., an amending notification providing for one year period from the date of payment of the additional duty of customs was issued, through Notification No. 93/2008-Cus., dated, 1-8-2008, amending Para 2(c) of the 2007 Notification. The net effect of these was that a one year period was insisted upon for refund applications. That period was calculable from date of payment of duty (SAD) : Dr. Partap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
