Custom, Excise & Service Tax Tribunal
Om Household Appliances Pvt. Ltd vs Commissioner Of Customs (Import) Nhava ... on 23 June, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/46/2010-Mum. (Arising out of Order-in-Appeal No. 693(CRC-IIA/2009(JNCH/IMP-306 (w.e.f.01.07.09) passed by the Commissioner of Customs (Appeals) Nhava Sheva.) For approval and signature: Honble Mr. S.K. Gaule , Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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Om Household Appliances Pvt. Ltd.
:
Appellant
VS
Commissioner of Customs (Import) Nhava Sheva
Respondent
Appearance
Shri G.B. Yadav, Advocate for Appellant
Shri Kishorilal SDR Authorized Representative
CORAM:
Mr. S.K. Gaule , Member (Technical)
Date of hearing : 23/06/2011
Date of decision :23/06/2011
ORDER NO.
Heard both sides.
2. The appellant filed appeal against order-in-appeal No.693(CRC-IIA/2009(JNCH/IMP-306 (w.e.f.01.07.09) whereby Commissioner (Appeals) has upheld the lower adjudicating authoritys order rejecting the refund claim of Rs.5,56,000/-.
3. Briefly stated facts of the case are that the appellant had cleared goods against the 4 Bills of Entry No. 803157, 799361, 775758,768618 dated 25.04.08, 19.04.08,04.04.08, 31.03.08 respectively. The appellant claimed benefit of Notification No. 102/2007-Cus dated 14/09/2007 and claimed the refund of SAD. The lower adjudicating authority rejected the refund of Rs.5,56,000/- in respect of Bill of Entry Nos. 775758 and 768618 dated 04.04.08 and 31.03.08 respectively on the ground of time bar. The appellant challenged the order before Commissioner (Appeals), The Commissioner (Appeals) upheld the lower adjudicating authorities order and rejected the appeal of the appellant. Hence the appeal.
4. The contention of the appellant is that they are eligible for the benefit Notification No.102/2007-Cus. dated 14/09/2007 at the material time there was no time limit prescribed under the Notification. However 01.08.2008 the Notification No. 102/2007 was amended by Notification No.93/2008 and time limit of 1 year for the claim of refund of SAD was provided. The contention is that they paid the duty on 9.4.2008, 02.04.2008 and filed the refund claim on 21.4.2009. In case the time limit is reckoned with effect from the date of amendment of the Notification even then their claim is well within the time limit of 1 year. The contention is that until unless it is specifically, in law provided amendment would have retrospective effect. Therefore, the amending Notification will not have any retrospective effect but have prospective effect only. In support of their contention they cited Honble Supreme Courts decision in the case of Suchitra Components Ltd. Vs. Commissioner of Central Excise, Guntur reported in 2007 (208) E.L.T. 321 (S.C.) wherein it was held that beneficial circular has to be applied retrospectively while oppressive circular applicable prospectively. They have also placed reliance on this Tribunal decision in the case of Audioplus Vs. Commissioner of Customs (Imports), Raigad reported in 2011 (264) E.L.T. 516 (Tri.-Mumbai) wherein while relying upon Suchitra Components Ltd. case (supra) it was held that assessee will be entitled for refund if the same is filed within 1 year from the date of issue of the Notification deciding the case in favour of the assessee.
5. The contention of the department is that Board Circular No. 06/08-Cus. dt. 28.4.2008 prescribe time limit of 1 year. The Ld. SDR also placed reliance in the case of Mafatlal Industries Ltd. Vs. Union of India 1997 (89) E.L.T. 247 (S.C.) held that in every case of refund under Section 11B of Central Excise Act, 1944 or Section 27 of Customs Act, 1962 will be applicable. The contention is that the Notification has been amended w.e.f. 1.8.2008. The contention is that the law limitation prevailing at material time there will be applicable to the case. Ld. SDR has also placed reliance on Honble Bombay High Court decision in the case of Uttam Steel Ltd. Vs. Union of India reported in 2003 (158) E.L.T. 274 (Bom.) wherein it was held that extension of limitation period does not amount to repeal of old law and enforcement of the substantive rights existing on the date when the amended provisions came into force could not be denied by applying Section 6 of General Clauses Act, 1897. He also placed reliance on the Tribunals decision in the case of Collector of Central Excise, Jaipur Vs. Shree Pratap Commercial Company Pvt. Ltd. reported in 1987 (31) E.L.T. 603 (Tribunal) and Atma Steels Pvt. Ltd. And Others Vs. Collector of Central Excise, Chandigarh And Others reported in 1984 (17) E.L.T. 331 (Tribunal-LB).
6. I have carefully gone through the submission and perused the records. The appellant paid duty in respect of Bills of Entry No.775758 ,768618 on 9.4.08 & 02.04.08 respectively. They filed refund claim on 21.4.09, the Boards Circular was issued on 28.4.2008 and the amending notification was issued on 1.8.2008. The above facts are not in dispute. It is also not departments case the appellants are not eligible for refund on merits. The only dispute is regarding the time limit. If the time limit is reckoned from the date to issue of circular and the date of amending notification. The refund claim filed by the appellant is well within 1 year. The Honble Supreme Court in the case of Suchitra Components Ltd. case (supra) held that beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively. This Tribunal in the case of Audioplus (supra) while relying upon the Honble Supreme Court decision in the case of Suchitra Components Ltd. (supra) allowed the benefit to the assessee, in the similar circumstances. So far as the case law cited by the Ld. SDR, is concerned, there is no dispute that every refund claim has to be as per Section 11B or Section 27 of the Central Excise Act, 1944 and Customs Act, 1962 respectively. However, the benefit in this case is granted vide Notification No. 102/2007 where no time limit was prescribed, the time limit was prescribed only vide amending Notification No. 93/2008. Therefore, Section 11B is not applicable to the said notification which is clear from the amendment to the notification. Therefore the case law cited are not relatable to this case. In case of Shree Pratap Commercial Company Pvt. Ltd., Bhilwara (supra) the case related to the issue of show cause cum demand notice under Section 11 A of the Act. Similarly, the Larger Bench decision in the case of Atma Steels Pvt. Ltd. And Others (supra) were also relating to recovery of duty short levied or not levied. Therefore they are not relevant to the present case in the case of Uttam Steel Ltd. (supra) Honble High Court held that the amended Section 11B, without affecting the existing substantive right, merely enables an expanded remedy period. In other words, even if the amendment is not to have retrospective effect, it would nevertheless have retroactive effect and in that view of the matter, the case of the petitioners would be covered within the amended period of limitation and thus the petitioners would be entitled to rebate of duty. From the above it is clear that the aforesaid decision is in favour of the assessee and not of any avail to the department. In view of the above, I set side Commissioner (Appeal)s order and allow the appeal.
(Dictated in Court) (S.K. Gaule) Member (Technical) Sm 5