TMI Blog2023 (5) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... efunds under the said notification - it is not disputed that the appellants have filed the refund claim after one year of payment of duty. The order-in-original notes the date of filing the refund claim to be 22/01/2009 for 178 Bills of Entry cleared during 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. 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 the date of the appellant filing the claim, the importer s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed by various benches of the Tribunal. A Civil Miscellaneous Appeal has been filed against the Chennai Tribunal judgment in Honda Siel Power Products Ltd. before the Hon ble High Court of Madras and is pending. He further added that the judgement of the Hon ble Tribunal in CMS Info Systems pertains to a period after the amendment of notification No.102/2007-Cus. dated 14.09.2007 by notification 93/2008 dated 01/08/2008, that introduced a time limit of one year from the date of payment of SAD for filing refund claims. It should hence be distinguished from the present case which pertains to the period prior to the amendment. The decision by the single Member Delhi Bench of the Tribunal recently in November 2021 in the case of Thermoking vs Commissioner of Customs (ICD, TKD), New Delhi, Customs Appeal No 50711 of 2021-SM dated 24/11/2021, as reported in MANU/CE/0228/2021 clearly shows why the Hon ble Delhi High Court judgement in the case of Sony India is to be preferred. Without prejudice to all the above, in the present case, the appellants submit that the issue involves refund of duty paid at a time when there was no stipulation with regard to time limit. In the following two de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, 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 imported may have to be despatched for sale to different parts of the country and that the importer may find it difficult to dispose of the imported goods and complete the requisite documentation within the normal period of six months. Taking into account various factors, it has been decided to permit importers to file claims under the above exemption upto a period of one year from the date of payment of duty. Necessary change in the notification is being made so as to incorporate a specific provision prescribing maximum time limit of one year from the date of payment of duty, within which the refund could be filed by any person . It is also clarified that the importers would be entitled to refund of duties only in respect of quantities for which the prescribed documents are made available and the claims submitted within the maximum prescribed time of one year. Unsold stocks would not be eligible for refunds. 4.2. It is also clarified that only a single claim against a particular Bill of Entry should be permi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c ) 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 ; (d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; (e) the importer shall, inter alia, provide copies of the following documents along with the refund claim : (i) document evidencing payment of the said additional duty; (ii) invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 applicable during the relevant time was that the refund claim must be filed within one year. Undisputedly, the appellants have filed all these refund claims after the period of one year. Therefore, all the refund claims were rejected by the original authorities and such rejections were upheld by the first appellate authority vide the impugned orders. Hence these appeals. ****** ***** **** ***** ***** ****** 16. We have considered the arguments on both sides and perused the records. The provisions for refund of Customs duty available under the Customs Act is under Section 27. The Hon ble High Court of Delhi in the case of Sony India Pvt. Ltd. (supra) held that this section should not apply to refund of SAD because the refund is as per the notification. The Hon ble High Court of Delhi was dealing with a situation where there was no limitation in the exemption notifications for filing the refund claim at the time of import but which was introduced by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 including the time limit within which the refund claim has to be filed must be fulfilled. We also find that there is no order of the jurisdictional High Court of Madras. However, the question of strict versus liberal interpretations of the exemption notifications has now finally been settled by the judgment of the Constitutional Bench of the Hon ble Apex Court on 30th July, 2018 in the case of Dilip Kumar Company (supra), any exemption notification must be strictly interpreted and any benefit of doubt must go in favour of the Revenue and against the assessee. Contrary decisions such as those in the case of Sun Export Corporation v. Collector [1997 (93) E.L.T. 641 (S.C.)] have been overruled by the aforesaid Five-Judge Constitutional Bench. Judicial discipline requires us to follow the judgment of the Apex Court and interpret the exemption notification strictly as it has been drafted including the time limit within which refund applications have to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant, 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 took place after import. In Commissioner of Central Excise, Chandigarh vs. Bhalla Enterprises [2004 (173) ELT 225 (SC)], it was held; The basic rule in interpretation of any statutory provision is that the plain words of the statute must be given effect to Since the words one year from the date of payment of the said additional duty of customs in sub paragraph (c) of paragraph 2 of Notification No. 102/2007 as amended by Notification No. 93/2008 is plain and clear allowing for no ambiguity, it should be given affect to without going into as to when the right to claim refund of duty in terms of the notification has accrued. As state at para 7 above, there is neither a constitutional guarantee nor a statutory entitlement to refund. The said Tribunal order also relies on an interpretation of section 27. We had earlier found that the notification must be understood on its own terms and is not anchored to section 27 of the Customs Act 1962. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, 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 additional duty of customs read with the date of filing the refund claim that is relevant for the purpose of limitation. An amended notification cannot be read in a manner that will render the amendment otiose. The judgment of the Hon ble Tribunal in United Chemical Industries (supra) follows the Tribunal judgment in the Audioplus case which has not found favour with us. We are hence not persuaded to change our views by the decisions of the Single Bench orders cited by the appellant. 10. In fact, our views are strengthened by the recent decision of the Hon ble Supreme Court in UOI Vs Cosmo Films Ltd [Civil Appeal no(s) 290 of 2023], dated 28/04/2023. Revenue was in appeals against a judgment and order of the Hon ble Gujarat High Court in M/s Shri Jagdamba Polymers Ltd. Ors. v Union of India Ors., [Special Civil Application No. 19324 of 2018] wherein mandatory fulfilment of a pre-import condition incorporated in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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