TMI Blog2021 (12) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided in favor of assessee. - Customs Appeal No. 50711 of 2021-SM - FINAL ORDER NO. 52076/2021 - Dated:- 24-11-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri B. L. Yadav, Advocate for the appellant Shri Ravi Kapur, Authorised Representative for the respondent. ORDER The issue involved in this appeal is whether the refund claim of Special Additional Duty (SAD), which is in lieu of sales tax, have been rightly rejected as time barred by the Court below. 2. The appellant is an importer and thereafter resells the goods. At the time of import of goods the appellant is required under the Customs Tariff Act to deposit i) customs duty, ii) additional duty (which is in lieu of Central Excise duty) and also deposit SAD (which is in lieu of sales tax by way of equalisation levy, so as to protect the domestic industry). When an importer resells the goods, as it is by way of trade, and deposits sales tax, he become entitled to refund of the SAD, which has been deposited at the time of import. The procedure for such refund is provided under Notification No. 102/2007-Cus. dated 14.09.2007. Subsequently, this notification was amended by subsequent Notification No. 93 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 236 (Bom-HC.) ii) R.M. Impex Pvt. ltd.-2020-TIOL-1271-CESTAT-Del. iii) CC, Hyderabad vs. Surya Telecom Pvt. Ltd., (Appeal No. C/31110-31111/2017 decided on 02.07.2018). wherein the ruling of Delhi High Court in the case of Sony India has been distinguished, and it has been held that time limit of one year from the date of deposit of SAD will apply, as provided in Notification No. 93/2008-Cus. 5. Being aggrieved, the appellant is before this Tribunal inter alia on the ground that it is a matter of common sense, that unless right accrues to claim refund, limitation cannot start. He also relies on the decision of Delhi High Court in Sony India and states that the views of Delhi High Court is rational and have been followed in several decisions by this Tribunal, which are as under:- i) Sony India Pvt. ltd., vs. Commissioner of Customs-2014 (304) ELT 660 (Del.) maintained by Hon ble Supreme Court in the order as reported in 2016 (337) ELT A102 (SC). However question of law, was kept open. ii) Purab Textile Pvt. Ltd., -2015 (330) ELT 414 (Tri. Mum.) iii) International Refrigeration Corpn.-2016 (332) ELT 824 (Tri. Del.) Same view was expressed in the case of Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid, owing to having incurred sales tax/VAT liability on subsequent sale of goods, it must be introduced by legislation, given the ex propriatory consequences of such a limitation period. (iii) 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 tax, local tax or any other charges for the time being leviable on a like article ; the rate of duty where more than one levy exits, would be the highest of such rates and the terms of imposition of SAD would be spelt out in the notification. In this case, the regime 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) of the Tariff Act, which led to confusion. In Notification No.102/2007-Customs, dated 14.09.2007, there was no period of limitation; by Circular No.6/2008-Customs, an amending notification providing for one year period from the date of payment of the Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have then to be specified and for effective and proper recovery. Even when there is any claim made for drawback, refund and exemption, it is the substantive law, namely, the Customs Act, 1962, which would govern the field. Else no refund can be claimed. (iii) The decision of the Hon ble High Court of Delhi holding that the provisions of the Customs Act or the rules and mechanism for refund are incorporated by reference to Section 3(5) of the CTA only so far as may be applicable and since SAD 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, cannot be agreed with in the light of the analysis of the statutory provisions and the scheme of refund. The Rules and Regulations under the provisions of the Customs Act, 1962, including those relating to drawback, refund and exemption shall so far as may be applied, and this reveals that for the purposes of making an application seeking refund, its consideration, that Customs Act and its provisions are made applicable even to the Tariff Act and the duties mentioned thereunder. Therefore, a provision for drawback, refund and exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be agreed with. 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. The submission of Mr. Patil that compliance with this period is calling upon the petitioner to do or perform something which is impossible, cannot be agreed with. 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 or 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 stipulation that no credit for the additional duty of customs shall be admissible. The importer thereafter can file a claim for refund of the special additional duty of customs paid on the imported goods, before the expiry of one year from the date of payment of additional duty of customs . (iv) With reference to the submission of Mr. Patil that the importer shall pay on sale of the said goods appropriate sales tax or value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2007, there was no prescribed period of limitation; by Circular No. 6/2008-Cus., period of one year was insisted and thereafter 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. (3) Section 27(1) of the Customs Act prescribes 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 of limitation. The Customs authorities had never understood Section 27(1) as to mean that a one year period of limitation was applicable for SAD refund. (4) Section 27 was understood as not applying to SAD cases, even tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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