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TMI Blog2024 (9) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... finalisation of provisional assessment (in cases where the assessment is provisional) or otherwise? (ii) Whether in the facts and circumstances of the case, the Ld. Tribunal was correct in the eyes of Law and on facts by holding that "the refund filed in the instant case is well within the time as prescribed under Notification No. 102/2007-Cus and refund is not time-barred." 3.1. The respondent filed an application before the Assistant Commissioner, Customs Division, Bhavnagar for refund of an amount of Rs. 2,46,902/- under Notification No. 102/2007-Customs dated 14.09.2007 towards Special Additional Customs Duty (SAD) paid in respect of Bill of Entry No. SBY/89/2012-13 dated 21.06.2012. 3.2. The Assistant Commissioner, Customs Division, Bhavnagar vide Order-in-Original dated 11th September, 2013 rejected the refund claim holding that the refund claim is time barred since it has not been filed within one year from the date of payment of duty. 3.3. Feeling aggrieved, the respondent filed an appeal before Commissioner (Appeals), Customs, Jamnagar who by Order-in-Appeal dated 26.12.2013 upheld the Order-in-Original rejecting the refund claim of the respondent. 3.4. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid by the respondent and considering the same, the application of refund is admittedly beyond the period of one year as observed by the Appellate Authority in the Appellate Order. 4.3. It was further submitted that the Circular No. 23/2010-Customs dated 29.07.2010 wherein clarification/instruction on the issue of relevant date for refund in terms of Notification No. 102/2007 in case of similar facts where the assessment is provisional has been issued. Reliance was placed on the relevant paragraph No.3 of the said Circular to submit that the time limit prescribed for the purpose of 4% CVD refund claim is one year from the date of payment of duty as per the said Notification and hence, in the cases where assessment is provisional, for the purpose of sanction of refund of 4% CVD, the date of payment of duty would be the date of payment of CVD at the time of import of goods and not the date of finalisation of the provisional assessment. It was therefore submitted that the same analogy would apply so far as the refund claim of SAD is concerned under the Notification No. 93/2008 read with Notification No. 102/2007. 4.4. Learned advocate Mr. Utkarsh Sharma in support of his submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ZUKI MOTORCYCLE INDIA P. LTD VS C.C., NEW DELHI (IMPORT & GENERAL) reported in 2019 (369) E.L.T. 1196 (Delhi Tribunal). The Delhi High Court in case of Pioneer India (Supra) has held as under : "36. The problem in the present case has arisen largely due to failure of the respondents to pass final adjudication orders which were belatedly made. Bills of exchange between the period 20th December, 2008 to 6th March, 2009; bills of exchange between 27th March, 2009 to 12th August, 2009; and bills of exchange between 8th September, 2009 to 9th October, 2009 were finally adjudicated on 9th July, 2010. There is no explanation for this delay and the cause thereof. 37. Circular No. 23 of 2010/custom issued on 7th September, 2010 stipulates that the date of payment of provisional duty and not the date of final adjudication is determinative for computing the limitation period of refund under notification No. 93 of 2008 issued on 1st August, 2008, can be faulted for many reasons. These are as under: i. As per Section 25 (1), Central Government is empowered to issue a notification granting exemption i.e. grant exemption generally or absolutely or subject to conditions from whole or any par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with a reference to the date of final assessment. 38. In view of the above discussion, we feel that it will be proper to harmoniously construe and interpret notification dated 1 August, 2008 and Section 27 read with Circular dated 29th July, 2010 by holding that an Assessee can make a claim for refund under notification No. 93 of 2008 dated 1st August, 2008 either by filing an application for refund within the limitation period specified under Section 27 of the Customs Act, 1962 or within the extended limitation period of one year from the actual date of payment even, if the said payment made was pursuant to provisional assessment. The longer of the two periods i.e. the period specified under Section 27 or the notification dated 1st August, 2008 read with Circular No. 23/2010-Custom dated 29th July, 2010 would be applicable. 39. To sum up: a. where the imported goods are released on payment of CVD on regular assessment, the application seeking refund can be made within one year of the payment of the CVD in terms of the notification dated 1st August, 2008 read with Circular No. 23/2010-Custom dated 29th July, 2010. b. where the goods are released on provisional assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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