9911796707
TMI Blog2025 (5) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 2. The facts of the case in brief are that the appellant filed refund claim of Rs. 8,63,701 on 29.07.2016 in respect of 4% Special Additional duty (SAD) paid by them on imports. On scrutiny of the claim, it was observed that the time limit in respect of some bills of entry had already expired at the time of claim submission. As such the claim to the extent of Rs. 2,80,713 was rejected being barred by limitation. Feeling aggrieved by the order-in-original passed by adjudicating authority, the appellant preferred appeal before Commissioner of Customs (Appeals). 2.1 The Commissioner of Customs (Appeals), after hearing the learned Counsel for the appellant and the department observed in the impugned order that the appellant has relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant have not fulfilled the condition 2(c) i.e. filing of refund claim within one year from the date of payment of duty. The learned Commissioner (Appeals), in the light of above mentioned judgment, rejected the appeal. 3. Aggrieved with the impugned order-in-appeal passed by learned Commissioner (Appeals), the present appeal has been filed before this Tribunal. 4. The learned Counsel for the appellant argued that the adjudicating authority and Commissioner (Appeals) have passed the order in total disregard of the judicial pronouncements and it was binding on the learned Commissioner to have respected the judgment of Hon'ble Delhi High Court in the case of M/s. Sony India Pvt. Limited vs. Commissioner of Customs, New Delhi -2014 (304) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that the limitation provided in the Notification dated 01.08.2018 that the refund has to be made within a period of one year from the date of payment of Additional Duty has to be read down in as much as the right to claim refund could accrue to an importer only when the subsequent sale is completed and given the vagaries of the market, the importer has limited control over when the sale would complete. It is for this reason that the Delhi High Court held that to allow the limitation period to start from the date of payment of duty as prescribed under the amended notification, would allow commencement of a limitation period for refund even before the right to claim refund actually accrued. The Delhi High Court, therefore, held that neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 (g) CC (Import) vs. Gulati Sales Corporation (Del) -2018 (360) ELT 277 (h) Sony India Pvt. Limited vs. CC, New Delhi - 2014 (304) ELT 660 (Del.) (i) Commissioner vs. Sony India Pvt. Limited - 2016 (337) ELT A102 (S.C.) (j) CMS Info Systems Limited vs. UOI - 2017 (349) ELT 236 (Bom.) (k) CMS Info Systems Limited vs. UOI - 2018 (360) ELT A190 5. Learned AR appearing for the department reiterates the order passed by the learned Commissioner (Appeals) and argued that the impugned order has been passed by following the ruling of Hon'ble Bombay High Court in the case of M/s. CMS Info Systems Limited vs. Union of India. He also argued that in M/s. CMS Info Systems Limited case the Hon'ble Bombay High Court has discussed the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own view. 6.1 I am of the view that when the limitation provided in the notification dated 01.08.2018 that the refund has to be made within a period of one year from the date of payment of additional duty has to be read-down in as much as the right to claim refund could accrue to an importer only when the subsequent sale is completed and given the vagaries of the market, the importer has limited control over when the sale would complete. It is for this reason that the Delhi High Court held that to allow the limitation period to start from the date of payment of duty as prescribed under the amended notification, would allow commencement of a limitation period for refund even before the right to claim refund actually accrued. 6.2 Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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