TMI Blog2022 (8) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue is dismissed. - CUSAA 106/2022 - - - Dated:- 18-8-2022 - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MS. JUSTICE TARA VITASTA GANJU Appellant Through: Mr. Vaibhav Joshi, Adv. Respondent Through: Mr. R V Prabhat with Mr. Vinay Yadav, Mr. Rishav Dubey and Mr. Pragyesh Pratap Singh, Advs. [Physical Court hearing/ Hybrid hearing (as per request)] RAJIV SHAKDHER, J. (ORAL): 1. Issue notice. 1.1. Mr R. V. Prabhat accepts notice on behalf of the respondent. 2. In view of the fact that the issue obtaining in the present appeal is similar to the issue raised in CUSAA no.54/2021, titled: Premier Timber and Trading Pvt. Ltd. vs. Pr. Commissioner Customs Import, which has been disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India 2017 (349) ELT 236 had taken a different view. 4.5. It is after noticing these aspects, that we had ruled in favour of the assessee in the Premier Timber case. The relevant portions of the said judgement are extracted below: 4. The relevant portion of the judgment passed in S.R. Traders reads as follows: 2. Mr S Sunil, who appears on behalf of the respondent, says that the issue is covered in favour of the respondent/assessee, by virtue of the judgment rendered by a co-ordinate bench of this Court in Sony India Private Limited vs. Commissioner of Customs, New Delhi 2014 (304) ELT 660 (Del), as also the judgment dated 21.09.2016 rendered by another co-ordinate bench in CUSAA 25/2016, titled Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period involved is of 2016. It is to be noted that the Notification No. 102/2007Cus dated 14.09.2007 was amended by Notification No. 93/2008-Cus dated 01.08.2008 by which the condition of filing refund claim within one year was inserted In the principal Notification 102/2007. This has been amplified in para 5.3.1 above. Thus the judgment of Sony India and subsequent judgment based on it are not applicable to present case. 5.4.1. In fact, this aspect has been specifically dealt in the decision of the Hon'ble Bombay High Court in the case of CMS Info Systems Ltd. [2017 (349) ELT 236 (Bom)] and the decision of Hon'ble Tribunal in case of Honda Siel Power Products Ltd. [2019 (369) ELT 1773 (Tri. Chennai)]. Appellants conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies (supra) are both testimony to this. It is the circulars/notifications of 2008 and No. 16/2009 which for the first time harped on the one year period of limitation. Circular No 6/2008 dated 28.4.2008 issued by the CBEC stated that: 4. Time-Limit: 4.1 In the Notification No. 102/2007-Customs, dated 14-9-2007, no specific time - limit has been prescribed for filing a refund application. Under the circumstances, a doubt has been expressed that whether the normal time-limit of six months prescribed in Section 27 of the Customs Act, would apply. In the absence of specific provision of Section 27 being made applicable in the said notification, the time-limit prescribed in this section would not be automatically applicable to refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from 01.08.2008 (by notification) became applicable. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate 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 [ Sic: Page 13] imposition of a period of limitation for the first time, without sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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