Custom, Excise & Service Tax Tribunal
M/S Verifone India Sales Pvt. Ltd vs Cc, New Delhi on 28 October, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. I DATE OF HEARING : 21/10/2016. DATE OF DECISION : 28/10/2016. Customs Appeal No. 320 of 2011 [Arising out of the Order-in-Appeal No. CC (A) CUS./IOG/79/ 2011 dated 23/03/2011 passed by The Commissioner of Customs (Appeals), New Custom House, New Delhi.] M/s Verifone India Sales Pvt. Ltd. Appellant Versus CC, New Delhi Respondent
Appearance Shri Nitin Goel, Advocate for the appellant.
Shri K. Poddar, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Justice Dr. Satish Chandra, President Honble Shri B. Ravichandran, Member (Technical) Final Order No. 54597/2016 Dated : 28/10/2016 Per. B. Ravichandran :-
The appellants filed two refund claims for additional duty of customs paid under Section 3 (5) of Customs Tariff Act, 1975. The refunds were admissible in terms of Notification No. 102/2007-CUS dated 14/09/2007 subject to fulfillment of certain conditions mentioned therein. The time limit prescribed for filing claim is one year from the date of payment of duty. Since, the assessments of bills of entry filed by the appellants were made on provisional basis, the refund claims were not entertained by the Department initially. The appellants filed the claims after finalization of assessments. The claims were rejected as barred by limitation as they were filed after one year of date of payment of duty. In the impugned order, the Commissioner (Appeals) confirmed the rejection of refund on the ground of time bar. Reliance was placed on Board Circular dated 29/07/10 which clarified that the refund claim is eligible if the same is filed within one year from the date of payment of duty at the time of clearance of imported goods.
2. The learned Counsel for the appellant submitted that as admitted in the Boards clarification above, it is apparent that there were different practices in different customs formations. Some of them were processing refund claims considering the relevant date after finalization of provisional assessment. In such situation, it is pleaded that their claim was not entertained earlier in view of the pendency of provisional assessment. They should not be deprived of bonafide refund of duty as they have fulfilled all the conditions of the notification.
3. The learned AR submitted that the notification stipulates time period for filing refund claims. This was reiterated in the Board circular. Any claim filed beyond one year from the date of payment of duty cannot be entertained as per law.
4. We have heard both the sides and perused the appeal records. We find that the appellants have imported various items, paid duty and filed claim for refund of additional duty in terms of Notification No. 102/07-CUS. The Original Authority held that in respect of claim for Rs. 32,32,875/- duty was paid between 04/4/2008 to 17/05/08 and the claim was filed on 23/09/2009; it is after expiry of one year. Similarly, a refund of Rs. 5,75,336/- covered duty paid in July, 2008 is hit by time bar. As such, a total refund of Rs. 38,08,211/- was rejected on the ground of time bar. We note that similar set of facts relating to refund of additional duty of customs under Notification 102/07-CUS in cases of provisional assessment of duty was subject matter of decision by Honble Delhi High Court in Pioneer India Electronics (P) Ltd. vs. Union of India reported in 2014 (301) E.L.T. 59 (Del.). The Honble High Court referred to the provisions of above said notification alongwith Section 27 of the Customs Act, 1962 and also Circular No. 23/2010-CUS dated 29/07/2010 and held as below :-
38.?In view of the above discussion, we feel that it will be proper to harmoniously construe and interpret notification dated 1st August, 2008 and Section 27 read with Circular dated 29th July, 2010 by holding that an Assessee can make a claim for refund under Notification No. 93 of 2008 dated 1st August, 2008 either by filing an application for refund within the limitation period specified under Section 27 of the Customs Act, 1962 or within the extended limitation period of one year from the actual date of payment even, if the said payment made was pursuant to provisional assessment. The longer of the two periods i.e. the period specified under Section 27 or the notification dated 1st August, 2008 read with Circular No. 23/2010-Custom, dated 29th July, 2010 would be applicable.
39.?To sum up :
a. where the imported goods are released on payment of CVD on regular assessment, the application seeking refund can be made within one year of the payment of the CVD in terms of the notification dated 1st August, 2008 read with Circular No. 23/2010-Customs, dated 29th July, 2010.
b. where the goods are released on provisional assessment followed by the final assessment, the application seeking refund can be made within the period of one year or six months, as the case may be, of the final assessment as stipulated by Explanation II to Section 27 of the Act or within the enlarged period of one year from the date of provisional release as stipulated by the notification dated 1st August, 2008 read with Circular No. 23/2010-Customs, dated 29th July, 2010.
40.?The Circular No. 23/2010-Customs insofar as it stipulates that the provisions of Section 27 of the Act do not apply to the Notification cannot be sustained to the extent indicated above.
5. The said decision of the Honble Delhi High Court has been followed in Allen Diesels India Pvt. Ltd. vs. Union of India reported in 2016 (334) E.L.T. 624 (Del.) and M.F. Rings & Bearing Races Limited vs. CC reported in 2016 (337) E.L.T. 17 (Del.). We also note that the Honble Delhi High Court examined similar set of facts in Sony India Pvt. Ltd. vs. CC, New Delhi reported in 2014 (304) E.L.T. 660 (Del.). The Honble High Court held that the right of claim refund only accrues to the importer once sale is complete. To uphold a limitation period starting from the date of payment of duty as prescribed in the amending notification would amount to allowing commencing of limitation period for refund claim before the right of refund even accrued. The Honble High Court held that imposition of a period of limitation for the first time without statutory amendment, through a notification, therefore, could not prevail. Accordingly, the Honble High Court read down the amending notification to the extent that it imposed limitation period. Considering the above legal position settled by the Honble Delhi High Court, the refund claims of the appellant are to be allowed.
6. The Original Authority is directed to examine the refund claims in the light of the decisions of Honble Delhi High Court and sanction the same at the earliest. The appellant shall file all the required details in this connection. The appeal is allowed in the above terms.
(Order pronounced in open court on 28/10/2016.) (Justice Dr. Satish Chandra) President (B. Ravichandran) Member (Technical) PK ??
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5CUS/320 of 2011