TMI Blog2021 (3) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No.718 of 2021 - - - Dated:- 10-3-2021 - Honourable Mr.Justice T.S.Sivagnanam And Honourable Ms.Justice R.N.Manjula For the Appellant : Mr.Hari Radhakrishnan For the Respondent : Mr.A.P.Srinivas, SSC JUDGMENT T.S.SIVAGNANAM, J. We have elaborately heard Mr.Hari Radhakrishnan, learned counsel for the appellant and Mr.A.P.Srinivas, learned Senior Standing Counsel accepting notice for the respondent. 2. The writ appeal, filed by the assessee, is directed against the order dated 23.11.2020 made in W.P.No.1714 of 2017. 3. The said writ petition was filed by the appellant challenging an Order-in-Original dated 08.3.2016 passed by the respondent rejecting the application filed by the appellant for the refund of Special Additional Duty (SAD) on two grounds namely (i) that the refund claim was filed beyond the time limit of one year from the date of payment of duty and (ii) that the sales invoice submitted by the appellant along with refund claim did not indicate charging of sales tax, instead there was an endorsement in the sales invoices that 'sale of poultry feed supplement under Commodity Code 705 of IV Schedule exempted from sales tax' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing writ petitions and two such orders have been placed before us namely in the cases of (i) M/s.Goyal Impex and Industries Ltd. Vs. Assistant Commissioner of Customs (Refunds-Sea) [W.P.No.3700 of 2017 etc. cases dated 23.9.2019]; and (ii) M/s.G.T.Jayanti Agrochem (India) Pvt. Ltd. Vs. Commissioner of Customs (Appeal) [W.P.No.20995 of 2016 etc. cases dated 13.7.2020]. 9. In the instant case, the learned Single Judge dismissed the said writ petition by relying upon the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner (CT), LTU, Kakinada Vs. M/s.Glaxo Smith Kline Consumer Health Care Limited [reported in 2020 (36) GSTL 305] and held that the said writ petition was not maintainable. 10. Rather, we had an occasion to consider a similar issue in the case of Mahindra Mahindra Ltd. Vs. Joint Commissioner (CT) (Appeals) [W.A.No.493 of 2021 dated 18.2.2021] and noted the circumstances, under which, a writ petition would be maintainable despite availability of an alternate remedy. The facts before us would show that the availability of alternate remedy is not an absolute bar especially when the legality of entitlement of the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 extent, this Court is of the opinion 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), CUSAA 3/2014 Page 8 such as the amending notification no. 93/2008-Cus dated 1.08.2008 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. .... 14. The expression so far as may be in this context, under Section 27 is significant as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered 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. It merely provides that the search may he carried out according to the method prescribed in Section 165(1).' 16. Section 27 (1) of the Customs Act prescribes a time limit of expiry of one year, from the date of payment of such duty or interest... . Section 27 (1B) lists out three contingencies when the one year limit applies with modified effect. That provision has the effect of shifting the date from which the refund claim is to be reckoned. All that can be inferred from the term so far as may be would be that specific provisions relating to the mechanism applicable for refund, in the Customs Act, applied; not the period CUSAA 3/2014 Page 11 of limitation. The Customs authorities had never understood Section 27(1) as to mean that a one year period of limitation was applicable. Audioplus (supra) and United Chemicals Industries (supra) are both testimony to this. It is the circulars/notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te legislation. Khemka and Co. (Agencies) Private Ltd. v. State of Maharashtra, (1975) 35 STC 571 and other decisions are authority on the question that in matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or rules cannot prevail or be made, in such cases. The CUSAA 3/2014 Page 13 imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail. 15. The special leave petition filed by the Department against the decision of the Delhi High Court in the case of Sony India Pvt. Ltd., was dismissed on the ground of limitation. However, the question of law has been kept open as reported in the decision of the Hon'ble Supreme Court in (2016) 337 ELT A102. 16. Mr.A.P.Srinivas, learned Senior Standing Counsel appearing for the Revenue would point out that in the decision of the Bombay High Court in the case of CMS Info Systems Ltd. Vs. Union of India [reported in (2017) 349 ELT 236], it has been held that to maintain a claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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