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Date to Compute Limitation period of 1 year in respect of SAD refund claim arising out of Court Order

Dev International (the Appellant) imported certain goods (impugned goods) and filed two Bills of Entry, both dated July 17,2008 wherein 4% SAD, amounting to Rs.1,11,556.90 was paid. The impugned goods were detained by Central Intelligence Unit (CIU) for investigation.

Limitation period of 1 year in respect of SAD refund claim arising out of the Order of the Court will be computed from the date of the Order and not from the date of payment of Customs duty

Dev International (the Appellant) imported certain goods (impugned goods) and filed two Bills of Entry, both dated July 17,2008 wherein 4% SAD, amounting to Rs.1,11,556.90 was paid. The impugned goods were detained by Central Intelligence Unit (CIU) for investigation. The Appellant approached the Hon’ble High Court of Bombay, which directed release of the impugned goods on provisional basis vide order dated March 17, 2010 and the same were released against P.D. Bond vide letter dated March 19,2010 issued by the Assistant Commissioner of Customs, CIU.

Thereafter, the Appellant sold impugned goods and filed refund claim on September 15, 2010 in terms of the Notification No. 102/2007-Customs dated September 14, 2007 (the Notification) in respect of 4% SAD.

Relying on the Circular No. 06/2008-Customs dated April 28, 2008, the refund claim filed by the Appellant was rejected as the same was filed after 1 year from the date of payment of Customs duty. Later the Commissioner (Appeals) also upheld the rejection of the refund claim.

Being aggrieved, the Appellant preferred an appeal before the Hon’ble CESTAT, Mumbai.

The Hon’ble CESTAT, Mumbai held the following:

  • In the instant case, Bills of Entry were filed on July 17,2008 and Customs duty was paid on July 18,2008. At that time

there was no time-limit provided in the Notificationand the same was inserted vide Notification No. 93/2008-Customs dated August 1, 2008 (the Notification 93);

  • The Hon’ble High Court of Delhi in case of Sony India Pvt. Ltd.[2014-TIOL-532-HC-DEL-CUS],has held that the amendment by the Notification 93 cannot be made applicable retrospectively;
  • In the present case, it is beyond the control of the Appellant to file the refund claim within 1 year from the date of paymentfor the reason that the impugned goods were detained by the CIU and released after direction of the Hon’ble High Court on March 17, 2010. It is also a settled legal position that, wherever any relief arises out of the order of the Court, the period of litigation is excluded for the purpose of computation of limitation;
  • In terms of Section 27(1B)(b) of the Customs Act, 1962, the Customs duty becomes refundable as a consequence of any judgment by Court, 1 (One) year shall be computed from the date of such judgment.

Therefore, the Hon’ble Tribunal decided the matter in favour of the Appellant and held that since the refund claim which arises only after the Order by the Hon’ble High Court and was filed within one year from the date of the Order of the Hon’ble High Court, the same was filed within time.

(Bimal Jain, FCA, FCS, LLB, B.Com (Hons), Mobile: +91 9810604563, Email: bimaljain@hotmail.com)

Read Other Articles from CA Bimal Jain

Categories: Custom Duty

View Comments (1)

  • Dear Sir,
    We had import purchase last year and it's boe date is 6th July, 2016 and tr6 challan date of duty payment is 22nd July, 2016. What is due date 5th July, 2017 or 21st July, 2017? Can I'll file refund after 6th July, 2017 and before 21st July, 2017.

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