By TIOL News Service

MUMBAI, NOV 27, 2014: THE issue is grant of SAD refund under notification no. 102/2007-Cusdt.14.09.2007.

The facts are that the appellants filed the claim of refund at ICD, Dadri within a period of one year from the date of payment of SAD. However, the goods were imported at CFS, Mulund and the SAD was paid there. By the time the refund claims were forwarded by Customs authorities at Dadri to the authorities at Mulund , a period of over one year had lapsed from the time of payment of duty to the time of receipt of refund claims at CFS, Mulund.

As the lower authorities had denied the refund on the ground of time bar, the appellant is before the CESTAT and submits that a similar issue had arisen in case of CCE vs. AIA Engineering Ltd. in relation to refund of service tax paid on input services used in export of goods under notification no. 41/2007-ST and the Gujarat High Court had in Tax Appeal No. 2266 of 2009, decided on 22.09.2010 held that original application having been filed within time limit though before wrong authority, the claim is not hit by time bar.

The AR relied on the wording of the Notification no. 102/2007-Cusand submitted that it clearly spelt out that the exemption shall be given effect if the importer files a claim for refund of the said SAD with the jurisdictional customs officer.

The Bench observed -

"5. … I do find that the notification requires the claim to be filed with the jurisdictional customs officer, who, in this case, was the proper officer at CFS, Mulund. According to the ld. Counsel the appellant gave a bunch of claims to be filed through their consultant both for Dadri and Mulund. By mistake, their consultant filed these claims in question at Dadri. The said claims were forwarded after a few months by Customs to ICD, Mulund. There is no dispute on the fact that the claims were filed within the stipulated time limit of one year but with ICD Dadri. There is also no dispute on the fact that the claims were received subsequently in CFS Mulund. I note that although notification 102/2007 requires refund claim to be filed with the jurisdictional Customs authorities. A similar issue came up before the Gujarat High Court relating to Notification no. 41/2007-ST wherein also the requirement of filing refund before the jurisdictional Customs officer was stipulated. Hon'ble High Court considered the following question of law.

"A. Whether period of limitation can be excluded if previously rebate claim application is filed before an authority not competent to sanction refund claim, more particularly, when a notification issued is clearly describing jurisdictional Assistant or Deputy Commissioner of Central Excise to grant refund?

B. Whether Tribunal committed error in extending period of limitation in absence of provision for condonation of delay?"

It was held by the Hon'ble High Court that since the original application for refund was filed within time, though before wrong authority, it cannot be said that the said application was barred by limitation.”

The appeals were allowed.

In passing : Also see 2014-TIOL-1978-HC-AP-CX.

(See 2014-TIOL-2369-CESTAT-MUM)