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TMI Blog2023 (3) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods, if the importer uses the goods, he has to suffer the 4% SAD so paid. However, if the importer sells the goods to someone else, then that transaction takes place within India and is chargeable to VAT at the hands of the State Government. 2. Notification No. 102/2007-Cus dated 14.9.2007 has been issued to provide for refund of the SAD if the importer sells the imported goods and pays the VAT on them. The benefit of this notification is available subject to some conditions including condition in paragraph 2(c) of the notification that 'the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of the payment of the said additional duty of customs'. 3. In appeal no. C/52190/2018, the respondent filed a claim for refund of Rs. 2,10,632/- of which the Assistant Commissioner rejected refund of Rs. 1,53,507/- for the reason that the claims were filed beyond one year from the date of payment of duty and hence were time-barred as per condition 2 (c) of the notification. 4. In appeal no. C/52192/2018, the respondent filed a claim for refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 165 of the Code of Criminal Procedure was to be followed in Foreign Exchange Regulation Act proceedings, by virtue of Section 37(2) of that Act. It was held, crucially that: "The submission that Section 165(1) has been incorporated by pen and ink in Section 37(2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Section 37(1). If Section 165(1) was to be incorporated by pen and ink as sub-section (2) of Section 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the CrPC relating to searches shall apply to the searches directed or ordered 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 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued prescribing the period of limitation as one year from the date of payment of additional duty of Customs. 17. Plainly, therefore. Section 27 was understood as not applying to SAD cases, even though it was in the statute book for many years. Yet, with the introduction of the circular and then the notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed with effect from 1-8-2008 (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 imposition of a period of limitation for the first time, without statutory amendment, through a notification, therefore could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have not followed the binding precedent of the jurisdictional High Court because in some other case, on the same issue in which also the High Court dismissed the Revenue's appeal, an SLP has been admitted by the Supreme Court. The submissions of Revenue in this appeal that the Commissioner (Appeals) should have not followed the binding ruling of the jurisdictional High Court can only result in considerable harassment to the assessee-public through needless litigation without any benefit to the Revenue. The law relating to the judicial discipline was explained in clearest terms by the Supreme Court in UNION OF INDIA vs. KAMLAKSHI FINANCE CORPORATION LTD [1991 (55) E.L.T. 433 (S.C.)] "5. The learned Additional Solicitor General, however, submits that the learned Judges have erred in passing severe strictures against the two Assistant Collectors who had dealt with the matter. He submitted that these officers had given reasons for classifying the goods under Heading 39.19 and not 85.46 and could do no more. He submitted that they acted bona fide in the interests of Revenue in not accepting a claim which, they felt, was not tenable. 6. Sri Reddy is perhaps right in saying that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under sub-section (2) the Collector of Central Excise, when he comes across any order passed by an authority subordinate to him, if not satisfied with its legality or propriety, may direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the department. The position now, therefore, is that, if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have some reservations on its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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