Cus - Refund - Goods imported in July 2008 and SAD paid - later, goods were detained - it was only after HC ordered provisional release in March 2010 that goods were sold & refund claim was filed - claim within time: CESTAT
By TIOL News Service
MUMBAI, JAN 21, 2015: THE appellant filed two Bills of Entry, both dated July 2008 wherein 4% SAD, amounting to Rs.1,11,557/- was paid. The goods were detained by CIU for investigation.
The appellant approached the Bombay High Court and the High Court directed release of the goods on provisional basis vide order dated March, 2010. Accordingly, the goods were released against P.D. Bond issued by the Assistant Commissioner of Customs, CIU.
Thereafter, the appellant sold the goods and filed refund claim under Notification 102/2007-Cus in respect of 4% SAD on 15/09/2010. The refund claim of the appellant was rejected on the ground of limitation - it was held that the refund claim filed after 1 year from the date of payment of Customs duty, relying on Circular No. 06/2008-Cus. dated 28/04/2008, was time barred.
As the Commissioner(A) rejected their appeal, the importer is before the Tribunal.
It is submitted that when the Bills of Entry were filed and Customs duty was paid there was no time-limit provided in the Notf. 102/2007-Cus dated 14/09/2007. Inasmuch as the time-limit was prescribed by amending para 2(c) vide Notification No. 93/2008-Cus dated 01/08/2008 and, therefore, the amendment cannot be made retrospective in effect. Furthermore, immediately after filing of Bill of Entry and payment of Customs duty, it is the department's Central Intelligence Unit, who have not allowed the release of the goods and only after intervention of the High Court of Bombay, by order dated 17/03/2010, the goods were released and from the date of release the refund claims were filed within one year. For this reason also, the refund claim is not time-barred. Reliance is placed on the Delhi High Court's judgment in the case of Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi - 2014-TIOL-532-HC-DEL-CUS wherein identical issue was involved and it was held that the amendment by Notification 93/2008-Cus dated 01/08/2008 cannot be made applicable retrospectively. The appellant prayed for allowing the appeal.
The AR reiterated the order passed by the lower authority.
The Bench observed -
"5. … There is no dispute that the filing of the Bill of Entry and payment of Customs duty has taken place on 17/07/2008 and 18/07/2008 respectively. At that time there was no time-limit prescribed for filing of refund claims in the Notification 102/2007-Cus. The Notification No. 102/2007 is an exemption Notification from payment of customs duty by way of refund mechanism. The applicability of the Notification is at the time of filing of Bill of Entry and payment of customs duty. The limitation of one year cannot be made applicable in cases where customs duty payment and filing of Bill of Entry has taken place prior to the amendment which became effective on 01/08/2008. The very same issue has been considered by the hon'ble Delhi High Court in the case of Sony India Pvt. Ltd.(supra), wherein it was held as under:
x x x
6. From the above judgment, it is settled legal position that the limitation of one year for filing of refund claims under Notification 102/2007-Cus is not applicable in a case where the assessment of Bill of Entry and payment of Customs duty was made prior to issue of amendment Notification No. 93/2008 dated 01/08/2008.
7. In the present case, it is beyond the control of the appellant to file the refund claim within one year from the date of payment for the reason that the goods were detained by the department's Central Intelligence Unit and released on provisional basis after direction of the hon'ble High Court on 17/03/2010. It is also a settled legal position that, wherever any matter is subjudice before any Court any relief arising out of the order of the Court, the period of litigation is excluded for the purpose of computation of limitation."
The Bench also took note of the provisions of Section 27(1B)(b) of the Customs Act, 1962, as regards limitation and observed -
"From the above statutory provision, it is clear that where duty becomes refundable, as a consequence of any judgment by Court, the one year shall be computed from the date of such judgment. In the present case, the refund arise only after the order by the hon'ble High Court on 17/03/2010 and the refund claim was filed within one year from the date of the order of the High Court. For this reason also, the refund was filed within the time-limit."
The order was set aside and the appeal was allowed with consequential relief.
(See 2015-TIOL-155-CESTAT-MUM)
