Case Law Details
Variety Lumbers Pvt. Limited Vs Commissioner of Customs (CESTAT Ahmedabad)
The refund claim was admittedly not filed within the period of one year as prescribed in paragraph 2 of clause C of Notification No. 102/2007-Cus dated 14.09.2007 and the same stands filed within a period of one year from the date of order of Hon’ble Supreme court. Further it is on record that appellant regularly filed the refund and department had not granted the refund after the period of 2009 on the ground that one of the condition of the Notification that refund of SAD would be entitled only if the imported goods were sold as such, has not been complied with. Pursuant to the action of department for not granting the refund, the Appellant was issued show cause notice for denial of refund claim on the ground that since the identity of goods imported by the Appellant was changed on account of sawing the timber, appellant was not entitled for refund. Further, Board vide circular No. 15/2010-CUS dated 29.06.2010 also clarified that refund of SAD would not be eligible to the importer in the case there is distinct classification for the imported and the final products that are same in market on which VAT was paid. We noticed that since the entire issue was sub-judice, Appellant had not filed the refund claim for subsequent imports. However, in view of the order passed by the Hon’ble Supreme Court, the Appellant had filed the refund claim on 17.01.2019 for the goods imported during the period between 29.12.2008 to 03.03.2011. Clearly, in the present case, the eligibility of refund arise only after the issue attained finality. The Hon’ble Supreme Court upheld the stand of Appellant on 24.04.2018 and appellant rightly filed the refund claim on 17.01.2009 within the period of one year from the date of decision of the Hon’ble Supreme Court.
Further, from the provisions of Section 27(1B) (C), it is clear that refund claim can be filed in consequence of any judgment decree, or direction of the appellate authority within one year. In this case, it is on record that the issue related to refund of SAD was under litigation and attained finality after the decision of Hon’ble Supreme Court. Therefore, as per the provisions of Section 27 of the Customs Act, 1962, the limitation for filing the refund claim shall start from date of decision of Hon’ble Supreme Court. In these circumstances, we hold that the refund claim filed by the appellant is within time.
In the present case there is peculiar fact that the appellant was refrained from filing refund claim by a Board’s circular No.15/2010-CUS dated 29.06.2010.
From the above circular, it is clear that the appellant was not allowed to file refund claim by the government till the issue on merit was settled by the Hon’ble Apex court in the appellant’s own case reported at 2018 (360) ELT 790 (SC). In the peculiar fact of this case the period upto the decision of the Hon’ble Supreme Court shall be reduced for the purpose of the relevant date as prescribed in Section 27 for computing the period of limitation of one year. Accordingly, in this case the relevant date shall be the date of the Apex court decision i.e. 24.04.2018. The appellant admittedly filed the refund claim within one year from the date of the Hon’ble Supreme Court judgment. Hence refund claim was filed well within the stipulated time period of one year from the relevant date in terms of Section 27 of the Customs Act, 1962.
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