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TMI Blog2025 (5) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... in cases where the assessment is provisional) or otherwise ? (ii) Whether in the facts and circumstances of the case, the learned 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. The brief facts of the case are as under :- 3.1. M/s Bharat Ship Breakers Corporation, the Respondent, had filed an application dated 04.07.2011, before the Assistant Commissioner, Customs Division, Bhavnagar for the refund amounting to Rs. 1,35,946/-, under the Notification No. 102/2007- Customs dated 14.09.2007 towards Special Additional Customs Duty paid on the lubricating oil in respect of the following: 1. B.E. No. SBY/94/2010-11 dated 25.06.2010 (M.T. Explorer), and, 2. B.E. No. SBY/275/2010-11 dated 24.01.2011 (N.V. Rula). 3.2 The Assistant Commissioner, Customs Division, Bhavnagar (hereinafter referred as 'the Original Adjudicating Authority), vide OIO (Order-in-Original) No. 06/CUS-REF/2011-12 dated 27.09.2011 held that "the refund claim in respect of Vessel M.T. Explorer is time barred, since it has not been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment of Bills of Entry is finalized. Therefore, the date of finalization of bills of entry should be reckoned as the actual date of payment and refund filed within one year from finalization of assessment to be treated as refund claim filed within one year. This issue has been considered in the case of Suzuki Motorcycle India P. Limited (supra) wherein the Tribunal has passed the following order :- "6. Notification No. 102/07-Cus., dated 14-9-2007 exempts goods by way of refund of SAD paid thereon, subject to fulfillment of certain conditions by the importer. The said notification mandates that at the time of importation of goods, the importer shall pay all duties, including SAD leviable thereon; and that on sale of such imported goods in the domestic market, the importer shall pay appropriate Sales Tax/VAT and thereafter to file the refund application before the jurisdictional Customs Officers. No time limit for filing the refund application has been specified in the said notification. However, the said notification was amended vide Notification No. 93/2008-Cus., dated 1-8-2008, providing for filing of refund application before expiry of one year from the date of payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of refund claim on time bar issue is not legally sustainable. The original authority is directed to examine the appellant's refund claim on merits and sanction the refund, if found eligible in terms of the Notification No. 102/2007-Cus., dated 14-9-2007. Needless to say that opportunity of personal hearing shall be granted to the appellant before deciding the matter." 11. The appeal is disposed of in above terms." From the above decision it can be seen that identical issue involved in the present case and the ratio of the above decision is clearly applicable to the present case. 5. As regards the submission of learned Authorised Representative and his reliance on the judgment of Bombay High Court in the case of CMS Info Systems Limited (supra) and Chennai bench decision in the case of Tranasia Bio-Medicals Limited (supra), I find that in both the cases there was no assessment provisional and thereafter final assessment, therefore, ratio of decisions is not applicable. Accordingly, in my considered view the refund filed is well within the time as prescribed under Notification No. 102/2007-Cus and refund is not time-barred. Accordingly, the impugned orders are set-asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange 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 part of custom duty leviable on goods. A notification cannot restrict the benefit or impose more rigorous or severe terms than the one prescribed under the Act. Notification can liberalise and grant exemption. Indulgence and benevolence can be an objective of a notification and restricted or shorter period of refund is not postulated. Notification cannot impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 st August, 2008 read with Circular No. 23/2010- Custom dated 29th July, 2010. b. where the goods are released on provisional assessment followed by the final assessment, the application seeking refund can be made within the period of one year or six months, as the case may be, of the final assessment as stipulated by Explanation II to section 27 of the Act or within the enlarged period of one year from the date of provisional release as stipulated by the notification dated 1 st Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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