Case Law Details
S.K. Rasayan Udyog Pvt. Limited Vs Commissioner of Customs (Import) (CESTAT Delhi)
The brief facts are that the appellant imported goods for trade vide 15 bills of entries during the period 9.05.2008 to 07.08.2008 and paid a total Special Additional Duty (SAD), which is in lieu of sales tax, of Rs.15,37,921. Subsequent to re-sale of the goods, the appellant applied for refund of SAD as allowable under Notification No.102 of 2007-Customs dated 14.09.2007, The said refund claim was adjudicated vide order-in-original dated 28.02.2019 and the same was rejected on the ground of limitation following the ruling of Hon’ble Bombay High Court in the case of M/s. CMS Info Systems Ltd. Vs. Union of India – 2017 (349) ELT 236 (Bombay) holding that the refund claim had to be filed within a period of one year from the date of payment of SAD, in view of the amendment vide Notification no.93/2008-Customs.
Hon’ble Delhi High (jurisdictional High Court) have held in the case of Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi – 2014 (304) ELT 660 (Delhi) under similar facts and circumstances, refund claim of SAD is not time barred as no such limitation is prescribed under the original Notification No.102 of 2007-Customs dated 14.09.2007,. It was also held that period of limitation for the first time cannot be introduced through subordinate legislation or notification. It was also held that limitation cannot start to run prior to crystalisation of the right to claim refund. The said ruling has been repeatedly followed in a catena of judgements including the case of CC (Import) Vs. M/s. Gulati Sales Corporation – 2018 (360) ELT 277 (Delhi) and also in the recent decision of Delhi High Court in Premier Timber and Trading Pvt. Ltd. Vs. Principal Commissioner of Customs (Imports) – 2022 7 TMI 885 (Delhi), wherein also, it was specifically held following the ruling of Sony India Pvt. Ltd. (supra), that in absence of the specific provision of Section 27, being made applicable in the said notification, time limit prescribed in Section 27 would not be automatically applicable to refund under the notification.
In this view of the matter, CESTAT allow this appeal and set aside the impugned order. The Adjudicating Authority is directed to grant refund along with interest @ 12% p.a., starting from the end of 3 months from the date of filing of refund application.
FULL TEXT OF THE CESTAT DELHI ORDER
The issue involved in this appeal relates to refund of Special Additional Duty (SAD) under Notification No.102 of 2007-Customs dated 14.09.2007, as amended by Notification No.93/2000-Customs.
2. The brief facts are that the appellant imported goods for trade vide 15 bills of entries during the period 9.05.2008 to 07.08.2008 and paid a total Special Additional Duty (SAD), which is in lieu of sales tax, of Rs.15,37,921. Subsequent to re-sale of the goods, the appellant applied for refund of SAD as allowable under Notification No.102 of 2007-Customs dated 14.09.2007, The said refund claim was adjudicated vide order-in-original dated 28.02.2019 and the same was rejected on the ground of limitation following the ruling of Hon’ble Bombay High Court in the case of M/s. CMS Info Systems Ltd. Vs. Union of India – 2017 (349) ELT 236 (Bombay) holding that the refund claim had to be filed within a period of one year from the date of payment of SAD, in view of the amendment vide Notification no.93/2008-Customs.
3. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide impugned order-in-appeal dated 22.03.2022 was pleased to dismiss the appeal upholding the order-in-original. Being aggrieved, the appellant is before this Tribunal.
4. Counsel for the appellant, Shri Jitin Singhal, inter alia, urges that the issue is no longer res integra. The Hon’ble Delhi High (jurisdictional High Court) have held in the case of Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi – 2014 (304) ELT 660 (Delhi) under similar facts and circumstances, refund claim of SAD is not time barred as no such limitation is prescribed under the original Notification No.102 of 2007-Customs dated 14.09.2007,. It was also held that period of limitation for the first time cannot be introduced through subordinate legislation or notification. It was also held that limitation cannot start to run prior to crystalisation of the right to claim refund. The said ruling has been repeatedly followed in a catena of judgements including the case of CC (Import) Vs. M/s. Gulati Sales Corporation – 2018 (360) ELT 277 (Delhi) and also in the recent decision of Delhi High Court in Premier Timber and Trading Pvt. Ltd. Vs. Principal Commissioner of Customs (Imports) – 2022 7 TMI 885 (Delhi), wherein also, it was specifically held following the ruling of Sony India Pvt. Ltd. (supra), that in absence of the specific provision of Section 27, being made applicable in the said notification, time limit prescribed in Section 27 would not be automatically applicable to refund under the notification. Accordingly, he prays for allowing their appeal with consequential benefits.
5. Authorised Representative for the respondent relies on the impugned order.
6. Having considered the rival contentions, I find that the issue herein is squarely covered by the rulings of the Hon’ble Delhi High Courts cited above, in favour of appellant. Further, the ruling of the Hon’ble Bombay High Court in M/s. CMS Info Systems Ltd. (supra) has been distinguished by this Tribunal in R. Traders – 2020-12-TMI-503, which judgement has been upheld by the Hon’ble Delhi High Court reported at 2022-4-TMI-1167.
7. In this view of the matter, I allow this appeal and set aside the impugned order. The Adjudicating Authority is directed to grant refund along with interest @ 12% p.a., starting from the end of 3 months from the date of filing of refund application. The appeal is allowed with consequential benefits. Such refund should be granted within a period of 60 days from the date of receipt of copy of this order.
[Order pronounced on 06.03.2023 ]
