TMI Blog2019 (11) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... t.14.9.2007, before its amendment by the amending Notification No. 93/08-Cus, dt.01.08.2008, all refund of customs duty being governed by Sec.27 of Customs Act, 1962, therefore, the time limit of one year from the date of payment of 4% SAD would be applicable - In the present case, since the refund claim filed by the Appellant on 05.11.2008 i.e. after one year from the payment of 4% SAD on 25.10.2007, is barred by limitation. Since, it is held that the refund is barred by limitation and hence not admissible, consequently other issues raised became academic and hence not considered - appeal dismissed. - Miscellaneous Application No.C/MISC/86004/2018 in Customs Appeal No.681 of 2011 - A/86917/2019 - Dated:- 24-10-2019 - HON BLE DR. D.M. MISRA, MEMBER (JUDICIAL) AND HON BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) For Appellant: Laxmi Menon, T. Viswanathan, Madhura Khandekar Advocates For Respondent: Shri R.K. Dwivedy, ADC (AR) ORDER PER: DR.D.M. MISRA: Heard both sides. 2. The Miscellaneous Application has been filed seeking change of cause title from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that it is an established principle of law that the imports are subject to conditions of a notification existing as on the date of importation. In the present case, when the goods in question were imported, there was no time limit prescribed in the Notification No.102/07-Cus for claiming refund. Thus, amendment to the said notification, after importation cannot be applied. In support, they have placed reliance on the Judgment in the case of CC Bangalore Vs Spice Telecom 2006 (203) ELT 538 (SC). Further, the Ld. Advocate referring to the judgment of Hon ble Delhi High Court in the case of Sony India Pvt. Ltd VS CC 2014 (304) ELT 660 (Del.), submitted that in the said case it has been held that the amending Notification No.93/08-Cus, cannot be made applicable retrospectively to the imports made earlier. He has submitted that SLP filed by the Department before Hon ble Supreme Court against the said decision of Hon ble Delhi High Court was dismissed on the ground of limitation. He has further submitted that the said judgment has been followed by the Tribunal subsequently in series of judgments. It is his contetnion that the time limit of one year cannot be made applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of 4% SAD paid at the time of import of CBU cars on 25.10.2007 is barred by limitation when the refund claim was filed on 05.11.2008 under Notification No.102/2007Cus. Dt.14.9.2007. It is not in dispute that prior to the amending Notification No.93/2008-Cus dt.01.08.2008, no time limit has been stipulated under the base of Notification No.102/07-Cus. dt.14.9.2007 for filing of refund claim of 4% SAD paid at the time of import. It is the contention of the Appellant that since at the time of import, there is no condition in the notification specifying time limit to file refund claim, accordingly, the period of one year introduced subsequently by Notification No.93/08-Cus, dt.01.08.2008 cannot be made applicable to the refund claim filed on 05.11.2008. The contention of the Revenue, on the other hand, is that the period of limitation for refund of Customs duty has been present under the statute at Sec. 27 of CA,1962 all along and also when the refund of 4% SAD paid at the time of import was filed on 05.11.2008, the amending Notification No.93/08-Cus, dt.01.08.2008 has been in force. The Revenue, strenuously relied upon the principle of law laid down by jurisdictional Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter-balance the local taxes or other charges leviable on a like article. Then comes the aspect of exemption in relation to which the Hon ble High Court observes that the intent is to allow a refund of the special additional customs duty because the importer has suffered the incidence of SADC on import. That was meant to counter-balance the sales tax/VAT leviable on a like article in India. These very articles have been sold and the importer then has to bear the burden even of the sales tax/VAT on sale of these goods. 33. It is submitted that the Hon ble High Court of Delhi has clearly opined and held that the provisions of the Customs Act on the rules and mechanism for refund are incorporated by reference in Section 3(5) of the CTA only so far as may be applicable. Since SADC is levied under Section 3(5) and that is refundable only on subsequent sale, then, no limitation period can possibly be imposed for advancing a refund claim. We have carefully perused the above observations and in the light of the analysis of the statutory provisions and the scheme of refund by us, with greatest respect, we are unable to agree with the High Court of Delhi on this point. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation seeking refund of the same has to abide by it, including the bar of limitation contained therein. That is how consistent with that provision even the special exemption notification carries the same stipulation or condition. We do not see how insistence on complying with it can be said to be imposing an unreasonable, unfair and unjust restriction. Once the nature of the right is considered, then, all the more we are unable to agree with Mr. Patil. There is no vested, much less absolute right in the petitioners to seek refund. Even a refund must be within the framework of the statute and admissible on the terms thereof. We are not inclined to agree with him that compliance with this period is calling upon the petitioner to do or perform something which is impossible. The exemption notification does not impose any new condition as has been read into it. It grants the exemption from payment of duty conditionally. The exemption can be availed of provided the goods which are imported are subject to payment of duties which include all the duties that are referred to in both the enactment and the notification. If the import is for subsequent sale, then, that invoice must carry a sti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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