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TMI Blog2023 (12) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... , who allowed the refund claim of duty paid by way of DEPB scrips. 2.2 Against the said order, the Revenue is before us. 3. Heard the ld. A.R. for the Revenue. 4. We find that the said issue came up before the Hon'ble Delhi High Court in the case of Allen Diesels India Private Limited Vs. Union of India reported in 2016 (334) ELT 624 (Del.), wherein the facts are as under : "4.. The importers were paying duties of customs including the SAD by using the duty entitlement pass book ('DEPB') scrip. However, it appears that the Department was not processing the said applications for refund of SAD in terms of the above Notification No. 102/2007-Customs on the ground that the SAD had been paid, not in cash, but by utilising the DEPB scrip. The importers then made various representations. The Customs officials also sought clarification from C.B.E. & C. on whether the refund could be granted where the initial payment of SAD had been made by utilising the DEPB scrips. As a result the C.B.E. & C. issued Circular No. 6/2008-Customs on 28th April, 2008, clarifying in paras 3 and 7.2 as under : "3. Manner of refund and its receipt : Your attention is invited to the instructions commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nual basis". It was further stated : "The facility of manual filing of Bills of Entry for utilizing the amount of re-credited CVD refund for payment of duty is also allowed. This facility has been extended up to 30-12-2010 as a one-time measure with a view to liquidate all such pendencies by that time". 7. Para 8 of Circular No. 27/2010-Customs issued on 13th August, 2010 brought about a change inasmuch as it stated that the importers were to be advised to make initial payment of the Countervailing Duty (CVD) in cash. Para 8 of the said circular read as under : "8. It has also been decided that importers should be suitably advised that re-credit amount of CVD refund should be used for payment of BCD and CVD only and not for 4% CVD so as to avoid cascading of subsequent re-credit of 4% CVD in the relevant scrips. Further, the Board is of the view that in the interest of ensuring expeditious grant of refund of 4% CVD in cash, the importers may be advised to make the initial payment of 4% CVD in cash." 8. The time limit for utilizing the re-credited DEPB scrips was extended by issuing further circulars. On 29th March, 2012, Circular No. 10/2012-Customs was issued stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered and granted in accordance with law within the same period of four weeks from today." 5. Again, this issue was also examined by this Tribunal in the case of Virgo Suitings Private Limited vide Final Order No.A/86139-86140/2022 dated 02.12.2022, wherein this Tribunal has observed as under : "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 were not fulfilled then there was no question of Adjudicating Authority's sanctioning the refund. In a series of decisions it is held that debit of any amount under the DEPB scheme, is a mode of payment of duty of exported goods and it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 93/2008-Customs, dated 1st 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 5 C/86324-86325/2019 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 date. 17. The question whether the device of circulars could be adopted for modifying a notification has come up for consideration before the Court earlier. In Sandur Micro Circuits Ltd. v. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 7 C/86324-86325/2019 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 to deny importers and exporters the refund of the SAD paid by using DEPB scrips, are invalid. 21. The rejection of the petitioner's refund applications by the orders d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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