TMI Blog2024 (3) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the judgment of Hon'ble Supreme Court in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY ORS. [ 2018 (7) TMI 1826 - SUPREME COURT] , wherein it has been held that if the assessee wishes to avail any exemption Notification, all the conditions set therein have to be fully complied with. In the present case, both the Bombay High Court judgment and Supreme Court judgment in the case of Dilip Kumar would be squarely applicable. If the appellant wishes to claim the refund of CVD, he is required to fulfill the condition of filing the refund claim within one year which is a mandatory condition under Notification No. 93/2008. Therefore, following the ratio of Tranasia Bio-Medicals Ltd. Case law, the appeal filed by the Appellant is dismissed. - MR. R. MURALIDHAR MEMBER (JUDICIAL) None, for the Appellant Shri S. Debnath, Authorized Representative for the Respondent ORDER When the matter was taken up for hearing, no one has appeared on behalf of the Appellant. It is seen from the appeal records that several adjournments have been granted. Therefore, in the interest of justice, I have taken up the Appeal for disposal with the help of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending notification. 3. The appellant imported some items in between 1-12-2007 and 5-12-2007 under 9 Bills of Entry, paid the applicable customs duties by demand drafts dated. 4-12-2007 and 6-12-2007 and received stamped TR-6 challans on 14-12-2007, 18-12-2007 and 19-12-2007. Notification 93/2008-Cus., dated 1-8-2008 ( amending notification ) was then issued amending Notification No. 102/2007 to prescribe a time period of 1 year from date of payment for the filing of refund claims by an importer under the Notification. On 11-12-2008, the appellant filed a refund claim amounting to Rs. 66,67,480/- before the Assistant Commissioner of Customs ( the respondent ) for the refund of SADC on the imports in December 2007 under the Notification No. 102/2007. After hearing the appellant, the respondent passed an order dated 12-10-2009 allowing the claim of Rs. 33,49,015/-, on the ground that the refund in respect of 4 Bills of Entry had been filed beyond the period of 1 year stipulated in the amending notification. The order, in relevant part, reads : Notification No. 93/2008, dated 1-8-2008 was issued prescribing the period of limitation as one year from the date of payment of additional du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 applicable during the relevant time was that the refund claim must be filed within one year. The appellant filed the refund claim after the period of one year and it was rejected by the lower authorities and hence this appeal. 2 . It is the case of the appellant that once they are entitled to benefit of refund of SAD, they should not be denied the same on the ground that they have filed the refund claim after the period of one year indicated in the exemption notification. They rely upon the judgment of the Hon'ble High Court of Delhi in the case of Sony India Pvt. Ltd. v. CC reported in 2014 (304) E.L.T. 660 (Del.) in which the Hon'ble High Court has held that the limitation of one year should not apply in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms 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 before the expiry of one year from the date of payment of the said additional duty of customs ; (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. 3. The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above, are fulfilled. [Notification No. 102/2007-Cus., dated 14-9-2007 as amended by Notification No. 93/2008-Cus., dated 1 -8-2008] 9 . After examining the question of law framed the Hon'ble High Court of Delhi answered it in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limitation of time of one year for filing the refunds does not apply. 12 . Per contra, Ld. DR asserts that an exemption notification must be read as it has been drafted with no intendments or modifications. He further submits that in the case of Sony India (supra), the Hon'ble High Court of Delhi was dealing with a case, as may be seen from the question of law framed, whether the goods were imported prior to introduction of the limitation for refund but the refund claim was filed after introduction of the limitations. The present case is similar to the cases dealt with by the Hon'ble High Court of Bombay in CMS Info Systems Ltd. (supra) as the import was done after the introduction of the limitation period. He further asserts that even if the limitation of one year under the amended notification is read down as held by the Hon'ble High Court of Delhi, in terms of Section 3(5) of the Customs Tariff Act, 1975 all provisions of Customs Act will apply including provisions of refund under Section 27. Therefore, no refund can be sanctioned beyond the period of one year. Lastly, he argued that the entire question is one of interpretation and application of the exemption no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available under the Customs Act are 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 this refund is available 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 time refund claim was filed. The Hon'ble High Court of Bombay, on the other hand, was dealing with a case such as the present one, where the imports have taken place after the amendment to the notification. The Hon'ble High Court of Bombay also held that the limitation under Section 27 also applies. We find that the Hon'ble High Court of Delhi framed the question of law only with respect to retrospective application of the amendment but also held that the amending notification must be read down to the extent it imposes a time limit for filing the refund claim. Evidently, if an importer resells the goods and files the refund claim within the period, they will be put to loss as he will be bearing both the burden of SAD and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 filed. We find that the judgment of the Hon'ble High Court of Bombay in the case of CMS Info System (supra) is consistent with the ratio of Dilip Kumar s case (supra), which is required to be followed. 17 . Consequently, the refund application of the importer beyond the time limit has been correctly rejected by the lower authorities. The impugned order rejecting such refund claim is correct in law and call for no interference. The appeal is rejected and the impugned order is upheld. [Emphasis supplied] 10. In the case of M.S. Metals, Vs. Commissioner of Customs (Prev.), Patna, reported in 2017 (345) E.L.T. 113 (Tri.-Kolkata), this tribunal has held as under: 8 . As per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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