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TMI Blog2025 (3) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... e deposited SAD was sought by the Respondents, which was rejected by the Order-in-Original and the Commissioner (Appeals) in Appeal No. CC (A) CUS/D-II/IMP/ICD/TKD/161-163/2021-22, on the ground that the same were filed beyond limitation and the original documents had not been furnished. The details of the Order-in-Original and the amount of refund claimed are set out below: S. No. Appeal No. OIO No. and Date Amount of refund claim Date of payment of SAD 1 105/2018 1305/2018 dated 13.07.2018 Rs. 10,28,611/- 05.12.2015 2 106/2018 1283/1018 dated 13.07.2018 Rs. 11,73,660/- 05.03.2015 3 104/2018 1284/2018 dated 13.07.2018 Rs. 6,76,076/- 19.04.2014" 4. The Respondent then challenged the order in Appeal No. CC (A) CUS/D-II/IMP/ICD/TKD/161-163/2021-22, passed by the Commissioner (Appeals), rejecting the refund, by filing an appeal before CESTAT. 5. Vide the impugned order, the refund has been permitted after following the decision of this Court in Sony India Pvt. Ltd. v. The Commissioner of Customs [2014 (304 ELT 660) DEL]. The CESTAT also discussed the judgment of the Bombay High Court in CMS Info Systems Ltd. v. Union of India [2017 (349) ELT 236 (BOM)], which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 102/2007-Cus. : MANU/CUST/0175/2007, dated 14-9-2007 as amended by Notification No. 93/2008-Cus. : MANU/CUST/0156/2008, dated 1-8-2008} "Exemption from special CVD to all goods imported for subsequent sale when VAT/Sales Tax Paid by importer.- In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled: (a) the importer of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red therein, no credit of the additional duty of customs levied under sub-section (5) of Section 3 of the CTA shall be admissible. That the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the Jurisdictional Custom Officer. The second Notification purports to introduce and by re-wording clause 2(c) that the refund claim has to be filed with the Jurisdictional Customs Officer before the expiry of one year from the date of payment of the said additional duty of customs. 25. Mr. Patil has brought to our notice and fairly Sections 25 and 27 and equally Sections 1, 2 and 3 of the CTA, 1975. The CTA is an Act to consolidate and amend the law relating to customs duties. Section 2 thereof states that the rates at which duties of customs shall be levied under the Customs Act, 1962, are specified in the First and Second Schedules. Section 3 enables levy of additional duty equal to excise duty, sales tax, local taxes and other charges. That Section reads thus:- "3. Levy of additional duty equal to excise duty.-(1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment in this behalf. (4) In making any rules for the purposes of Sub-section (3), the Central Government shall have regard to the average quantum of the excise duty payable on the raw materials, components or ingredients used in the production or manufacture of such like article. (5) The duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. (6) The provisions of the Customs Act, 1962 and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act." 26. A perusal of sub-sections (3) and (4) of this Section reveals that if the Central Government is satisfied that it is necessary in the public interest to levy on any imported article an additional duty as would counterbalance the excise duty leviable on any raw materials, components and ingredients of the same nature, then, it should proceed to act in terms of these sub-sections and levy an additional duty. Sub-section (5) enables count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of Delhi was entitled to refund of special additional customs duty." 6. The Bombay High Court in the said decision of CMS Info Systems Ltd. (Supra), although taking a contrary view in respect to the refund of SAD and refusing the same, observed that the High Court of Delhi in Sony India Pvt Ltd. (Supra)has allowed the refund of SAD in similar facts and circumstances. 7. The Customs Department is in appeal against the said orders of CESTAT. The Court has heard Mr. Aditya Singla, ld. Senior Standing Counsel for the Appellant. He has submitted that the issue relating to refund of SAD and limitation thereof has not been finally adjudicated by the Supreme Court, though both the decisions of Sony India Pvt. Ltd. v. The Commissioner of Customs [2014 (304 ELT 660) DEL] and CMS Info Systems Ltd. v. Union of India [2017 (349) ELT 236 (BOM)] and other decisions of this Court have all reached the Supreme Court. It is his submission that most of the said cases have been rejected on Low Tax Effect. Ld. Senior Standing Counsel has placed before this Court a compilation of the various orders. 8. The Court has considered the matter. A perusal of the table in paragraph 3 of this order, would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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