TaxTMI 
TaxTMI 
2024 (3) TMI 996
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.... Order in Original no. 35/AC/ REFUND/ICDSND/ 2016-17 dated 29.11.2016 passed by Asstt. Commissioner Customs ICD, Sanad. Sanctioned Refund Rs 3,79,272.40 in terms of Notification No.102/2007-Cus. dated 14.09.2007 noting that Appellant had paid all the duties and submitted documents evidencing payment of SAD and therefore, refund of SAD paid was admissible in cash. 4. Inter-departmental 'Audit' letter dated 07.02.2017 as mentioned in Order in Original no. Dated 03.1.2022 at pp. 73 para 14 stated to be not communicated to the Appellant. There was non-fulfilment of condition in Para 2(b) of the said Notification was conveyed by the CHA involved in the process of clearance of the goods to the Appellant. 5. Demand Draft bearing no. 059382 dated 20.05.2017 Appellant deposited Rs 4,06,393/- [Refund sanctioned alongwith interest Rs. 27,121] 6. Reminder letter dated 11.10.2021 to Deputy Commissioner of Customs, I.C.D. Sanand, Ahmedabad. Appellant after waiting for communication and review order, addressed a reminder letter, enclosing relevant documents after rectifying procedural lapse, with a request that amount deposited by the Appellant be remitted back. Same ....
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....of Air Conditioners sanctioned in 2016 and then deposited back, was rejected on the ground that it was barred by limitation. 13. Aggrieved by the Order-in-Appeal the appellant has filed the present appeal. Following grounds inter alia, were taken by the appellant:- 2. The Appellate Authority ought to have appreciated that the amount paid by the Appellant was a deposit in lieu of an inquiry. Being a regular importer, the Appellant paid the amount as a deposit to prove my bonafide. Further, no proceedings commenced in relation to the deposit and hence the Appellant requested for return of the deposit vide reminder letter 11.10.2021. The appellant submits that the bar of limitation did not apply to the payment made as a deposit. Further, as the Department had not brought any order of rectification or revision in order to appropriate the amount paid by the Appellant and therefore the amount paid could not be retained by the Department. 2.1 The Appellant submits that without there being any assessment or adjudication appropriating the amount paid, the same retains the character of a 'deposit and does not take the character of a 'duty'. It is only in case whe....
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....equer. Thereafter, the appellant have filed fresh refund claim vide letter dated 11.10.2021, along with, the relevant documents after rectifying the mistake in the previous documents. In other words, the refund application complete in all aspects was submitted on 11.10.2021. Hence, the same is hit by the limitation prescribed in the Notification. Therefore, I do not find any infirmity in the impugned order rejecting the same as time barred in terms of Para 2(c) of the Notification No. 102/2007- Cus dated 14.09.2007, as amended. 5.7 The appellant have further contended that the appellant had returned the amount in anticipation of further communication from the Respondent. However, the department has neither appropriated the amount towards any liability nor the Order - In - Original dated 29.11.2016 has been modified, amended, revised, annulled or challenged by the Ld. Respondent. Therefore, the refund sanctioned vide Order - In - Original dated 29.11.2016 has attained finality. Hence, the payment made by way of Demand Draft was required to be deemed as payment under protest and should be considered as 'Deposit'. Thus, it needs to be examined whether the department was req....
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....such duty or the duty ascertained by the proper officer, and intimate such payment in writing to the proper officer. It is relevant to refer to the Judgment of Hon'ble CESTAT, Mumbai in case of ITC Ltd. (2016 (344) E.L.T 485 (Tri.- Mumbai)], wherein, it is held that: "From the above provision of sub-section (28) is plear that when there is no suppression of fact on the part of the assessee and the duty along with interest is admittedly paid without contest, the show cause notice should not have been issued. The only exception, is provided that if the duty is not paid by reason of suppression of fact, misdeclaration, fraud, collusion, etc., with intent to evade payment of duty, immunity provided under sub- section (28) is not available to the assessee. In the present case, though the non-payment was pointed out by the department but no suppression of fact, misdeclaration, collusion, fraud, etc., exist in the case for the reason that M/s. MRBBIPL have issued valid invoice for removal of capital goods. Therefore, neither show cause should have been issued nor any charges of the show cause notice should have been confirmed. As per above discussion and the clear legal provision u....
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....of invoices remain unprinted with declaration as required under clause 2(b) of the Notification No. 102/2007- Cus Dated 14.09.2007, and that their case being similar one, hence they again submitted the claim. These finds of the adjudicating authority have not been disputed by the appellant in the appeal memorandum or during course of hearing. Hence, I am of the considered view that the appellant, agreeing to the query raised by the Hdars. Audit had paid the erroneously refunded amount to the Government Exchequer. Therefore, in light of the Judgment of Hon'ble CESTAT, Mumbai in case of M / s . Samsung India Electronic Pvt. Ltd., Gurgoan, they had resubmitted the refund claim approximately after a period of 4 1/2 years. It is relevant to refer the observations of 9 Member Bench the Hon'ble Supreme Court in case of Mafatial Industries Ltd .-[1197 89) E.L.T. 247 (S.C.)]: (iv) It is not open to any person to make a refund claim on the basis of a decision of a Court or Tribunal rendered in the case of another person. He cannot also claim that the decision of the Court/Tribunal in another person's case has led him to discover the mistake of law under which he has paid the t....
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....are required to be produced, that their production is also mandated in a particular period and within a particular time limit is not something which we are required to call upon and decide. We have before us a case of rejection of a refund application simply because it was not filed within one year from the date of payment of the additional duty of customs. In such circumstances and when that stipulation is challenged, all that we can hold is that we are unable to agree, with greatest respect, with the view taken by the Hon'ble High Court of Delhi. With greatest respect, if the exemption can only be claimed within the statutory provisions and not beyond the same, such conditional exemption including the stipulation as above has not been challenged. Only one condition therein cannot be declared ultra vires because the petitioners desire to brush it aside. The petitioners have accepted the position that if this exemption notification had not been issued in exercise of the statutory power, no exemption could have been claimed at all. In these circumstances, merely because a condition is imposed to file a refund application and which is in the nature of a time-bar or limitation, th....
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....hat 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 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 pverruled 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 ref....