TMI Blog2022 (12) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... . LTD. VERSUS UNION OF INDIA ORS. [ 2016 (2) TMI 247 - DELHI HIGH COURT] wherein the importers were paying duty of Custom including SAD by using DEPB scrips but the department was not refunding the SAD on the ground that SAD had not been paid in cash but by utilizing DEPB scrips and the Hon ble High Court vide order dated 01/02/2016 allowed the petitions filed by the importers and held that since the petitioner therein have fulfilled the conditions set out in Notification No. 10/2007-CUS for availing the refund, the department is directed to issue orders granting refund to the petitioner therein. Undisputedly, the Revenue has failed to establish through any kind of documents or case laws that debit of any amount under the DEPB scheme is not a mode of payment of duty, therefore the benefit cannot be denied to the appellant. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 86324 Of 2019 and Customs Appeal No. 86325 Of 2019 - FINAL ORDER NO. A/86139-86140/2022 - Dated:- 2-12-2022 - MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Anjali Hirawat Advocate for the Appellant Shri Ram Kumar Authorised Representative for the Respondent ORDER These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w my attention to public notice dated 18/04/2013 issued by DGFT which provided that if SAD was paid by the utilizing duty credit scrip after 30/09/2013 such payment cannot be considered as proper payment of Custom Duty as time limit fixed for utilizing the credit of 4% SAD was only till 30/09/2013 and therefore the Authorities below have rightly rejected the refund claim. According to Learned Authorised Representative the public notice issued by DGFT is not just an executive instructions but Delegated Legislation which has the force of law. 6. I have heard rival submissions and gone through the case records including the submissions and case laws cited by respective sides. The Notification dated 14/09/2007 as amended by Notification dated 01/08/2008 nowhere denied the refund when the same was paid by debiting DEPB scripts. The said notification laid down certain conditions and the exemption under Notifications has to be upon fulfilment of those conditions only and nothing else. It is not disputed that the appellant have fulfilled the conditions therein and that is why the refund has been sanctioned of that part of the duty which has been paid in cash. Had those the condition wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification can possibly be brought about only by again exercising the powers under Section 25(1) of the Act. In this very context, it may be noticed that one instance of such amendment is the issuance of Notification No. 93/2008-Customs, dated 1 st August, 2008 under Section 25(1) of the Act to bring about an amendment to Notification No. 102/2007-Customs to introduce a time limit within which claims for refund of the SAD should be made by importers. 16. Although it is sought to be projected that the circulars which are subject matter of the challenge in the present petitions were issued to streamline the procedure and to remove ambiguities, in fact what the circulars seek to amend is Notification No. 102/2007-Customs itself by introducing an additional condition for being entitled to refund, which condition does not find place in Notification No. 102/2007-Customs. This condition is to the effect that if the payment of the SAD has in the first place not been made in cash, but by using a DEPB scrip, then the importers concerned would not be entitled to refund of SAD in cash. It is not in dispute that there is no such restriction in Notification No. 102/2007-Customs even as on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht mitigate rigours of law thereby granting administrative relief beyond terms of the Relevant provisions of the statute, but the Central Government is not empowered to withdraw benefits or impose harsher or stricter conditions than those postulated by the statute. In later cases, circulars can supplant the law but not supplement the law. 20. Therefore, the legal position as explained in the above decisions makes it clear that the Circular Nos. 6/2008, 10/2012 and 18/2013 issued by the C.B.E. C. could not have imposed an additional restriction for availing of the exemption in terms of the Notification No. 102/2007-Cus. issued under Section 25(1) of the Act. An amendment to a notification issued in exercise of the powers under Section 25(1) of the Act has to be brought about only by issuing another notification under that provision. Inasmuch as the circulars under challenge seek to impose an additional restriction for grant of refund of the SAD under Notification No. 102/2007-Customs, they are ultra vires of the Act and cannot be legally sustained. Consequently, it is declared that the Circular Nos. 6/2008, 10/2012 and 18/2013 issued by the C.B.E. C., insofar as they seek t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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