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TMI Blog2023 (5) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority as time-barred. The appeal filed by them against the said order before the learned Commissioner (Appeals), Chennai also did not succeed. Aggrieved by the impugned order the appellant is before us. 2.1 No cross objection has been filed by the respondent. 3. We have heard Shri Murugappan learned advocate on behalf of the appellant. He submitted that, in the matter of application of one year time limit for refund of SAD, the Hon'ble Delhi High Court in the case of Sony India Pvt Ltd Vs Commissioner of Customs, New Delhi [2014 (304) ELT 660 (Del)] and the Hon'ble Bombay High Court in CMS Info Systems Ltd Vs UOI [2017 (349) ELT 236 (Bom)] have taken different views. The appeal filed by CMS Info Systems is pending before the Hon'ble Supreme Court. The Chennai Bench of the Tribunal in the case of Honda Siel Power Products Ltd. Vs C.C. (Port-Exports), Chennai [2019 (369) ELT 1773 (Tri-Chennai), has followed the CMS Info Systems judgment of the Mumbai High Court, while the Delhi High Court judgment in Sony India Pvt Ltd is being followed by various benches of the Tribunal. A Civil Miscellaneous Appeal has been filed against the Chennai Tribunal judgment in Honda Siel Power Prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The duty was paid as per notification No. 102/2007 dated 14/09/2007 before it was amended by notification No. 93/2008 dated 01/08/2008, when there was no stipulation about time limit, although the claim was filed after the amendment came into force. (b) whether the time limit as specified in Section 27 of the Customs Act 1962 would apply to refund claims filed as per the provisions of notification 102/2007 dated 14/09/2007 6. We begin by examining point (b) at para 5 above. Boards Circular No.6 /2008-Customs dated 28.4.2008 has clarified this issue. The relevant para of the circular is reproduced below. "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 refunds under the notification. Further, it was also represented that the goods import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act being made applicable to notification No.102/2007-Customs dated 14.9.2007, the said provisions would not automatically apply to a claim of refund under the notification. On the same lines a clarification has also been given for the payment of interest in the circular. This being so in the absence of section 27 being made applicable in the said notification, the time limit prescribed in the section would not be automatically applicable to refunds under the notification. 7. We now answer the main issue at para 5 (a) above. At the outset an examination of sub-para (c) of para 2 as it originally stood in notification No. 102/2007-Cus. dated 14.09.2007 and after its amendment by notification No. 93/2008 dated 01/08/2008, will help us understand the issue better. The same are reproduced below:- "Notification No. 102/2007-Cus. dated 14.9.2007 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled : (a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; (b) the importer, while issuing the invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the period from 01/10/2007 to 31/10/2007. It is also noted that the amending Notification No. 93/2008 is dated and came into effect from 01/08/2008. Hence this is case where the claim has been filed not only one year after the payment of additional duty but also after the amendment came into force bringing in a time limit of one year. We have gone through the judgment of the Coordinate Bench of the Hon'ble Tribunal at Chennai, in the case of Honda Siel Power Products Ltd. (supra), to examine the facts of the said case and come to a conclusion whether the facts of the impugned order are the same as in the said judgment, for it to be applicable here. The relevant portion of the judgment is reproduced below; "2. The appellants herein had imported goods and paid Special Additional Duty @ 4% as applicable to the goods. In terms of Notification No. 102/2007-Cus., dated 14-9-2007 read with Notification No. 93/2008, dated 1-8-2008, the assessees are entitled to refund of Special Additional Duty (SAD) paid if the imported goods are thereafter sold by them on payment of VAT subject to the conditions mentioned in the notification. One of the conditions mentioned in the notification as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Gulati Sales Corporation [2018 (360) E.L.T. 277 (Del.)] decided by the Hon'ble High Court of Delhi on 7-11-2017, the ratio of Sony India (supra) was followed even when the imports were made after amendment to the notification. Nevertheless the undisputed position is that this is a case of a refund arising out of a conditional notification. 17. To sum up, we find that the Hon'ble High Court of Delhi has taken a liberal view on interpreting the exemption notification and held that since the purpose of availing the SAD is to provide level playing field between the imported goods and the domestic goods, when the imported goods are resold on payment of VAT to the State Government, the exemption notification provides for refund of SAD. It may or may not be always possible for the importer to resell the goods and file the refund claim within time depending on his market conditions. Taking a liberal view, the Hon'ble High Court held that refund is available without the limitation of one year indicated in the exemption Notification 102/97 after amendment. On the other hand, the Hon'ble Bombay High Court has constructed the exemption notification strictly and held that all conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim an exemption and that there is neither a constitutional guarantee nor a statutory entitlement to refund. 8. The Hon'ble Tribunal in its judgment in Honda Siel Power Products Ltd. has examined both the judgements of the Hon'ble High Courts of Delhi and Mumbai in Sony India Pvt Ltd Vs Commissioner of Customs, New Delhi (supra) and in CMS Info Systems Ltd Vs UOI (supra), in detail and found that the judgment in CMS Info Systems Ltd needs to be followed. The relevant paras of the Hon'ble Chennai Tribunals judgment have been extracted above. In the circumstances we do not repeat the discussions and find that the judgment of the co-ordinate Bench of this Tribunal in Honda Siel Power Products Ltd. (supra), will squarely apply to the impugned order. We concur with the same by upholding the impugned order and answering the query at para 5(a) above accordingly. 9. The Single Member Bench judgments of the Tribunal at New Delhi and Mumbai cited by the appellant, have only persuasive value, we however examine the same. At para 10 of the Tribunals judgment in 'Thermoking' (supra) it was held that the right to claim refund of duty in terms of the notification has accrued only when the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta, AIR 1966 SC 529, this Court, while dealing with the same issue observed as under:- 'A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.' (See also: The Commissioner of Income Tax, West Bengal I, Calcutta v. M/s Vegetables Products Ltd., AIR 1973 SC 927; and Tata Power Company Ltd. v. Reliance Energy Limited & Ors., (2009) 16 SCC 659). Therefore, it is evident that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein, is unequivocal." (emphasis added) In the Tribunals judgment in the case of 'Audioplus' the refund claim was filed prior to the amendment. As stated at para 8 of the order, any payment of duty made after 01/08/2008 (ie after the amendment), refund of the same shall be entitled, if the same is filed within one year. It is felt that the Hon'ble Tribunal has not appreciated that post amendment it is the twin dates of payment of add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judgement while setting aside the orders of the Hon'ble Gujarat High Court and deciding in favour of Revenue, held; "73. In this court's opinion, what applies to refunds, (the right to which can be curtailed legitimately) applies equally to exemptions. It has been held in Bannari Amman Sugars Ltd. vs. Commercial Tax Officer & Ors [2004 (6) Suppl. SCR 264] that if there is any tax concession, it "can be withdrawn at any time and no time limit should be insisted upon before it was withdrawn". The Supreme Court in its above judgment has under scored the legislative power to amend an exemption notification mid-stream. 11. To sum up, we find that in the absence of specific provision of section 27 being made applicable in Notification No.102/2007-Customs dated 14.9.2007 as amended, the time limit prescribed in this section would not be automatically applicable to refunds under the said notification. Further the refund claim in the present case has been filed after the amendment to Notification No.102/2007-Cus. came into force. Conditions of a notification should be strictly construed. This being so, as per sub para (c) of para 2 of the amended notification, which was effective on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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