Custom, Excise & Service Tax Tribunal
J J Poly Impex P Ltd vs C.C.-Ahmedabad on 30 June, 2017
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ~~~~~ Case No Impugned Order Detail's Date of Impugned Order Passed By Appellant Respondent
C/13673/2013-SMC OIA-334-335/CUS/COMMR-A-/AHD/2013 13/08/2013 Commissioner of CUSTOMS-AHMEDABAD Neelkamal Global Resources Pvt Ltd C.C.-Ahmedabad C/13674/2013-SMC OIA-334-335/CUS/COMMR-A-/AHD/2013 13/08/2013 Commissioner of CUSTOMS-AHMEDABAD Neelkamal Global Resources Pvt Ltd C.C.-Ahmedabad C/13917/2013-SMC OIA-560-563/2013/CUS/COMMR-A-/KDL 21/08/2013 Commissioner of CUSTOMS-KANDLA Khanna Paper Mills Ltd C.C.-Kandla C/10507/2014-SMC OIA-07/2014/CUS/COMMR-A-/JMR 09/01/2014 Commissioner of CUSTOMS-JAMNAGAR Shirdi Steel Traders C.C.-Jamnagar C / 10538 / 2016-SMC OIA-AHD-CUSTM-000-APP-350-15-16 08/02/2016 Commissioner of CUSTOMS-AHMEDABAD J J Poly Impex P Ltd C.C.-Ahmedabad Represented by:
For Appellant (s) : Shri P. P. Jadeja, Advocate For Respondent (s): Shri J. Nagori, Authorised Representative CORAM :
Dr. D. M. Misra, Hon'ble Member (Judicial) Date of Hearing : 14.06.2017 Date of Decision: 30.06.2017 ORDER No. A/11334-11338/2017 Per : Dr. D. M. Misra These five appeals arising out of a common order and involving common issues, and therefore, taken up together for disposal.
2. Briefly stated the facts of the case are that the appellants had filed refund claims for Rs. 20,16,004.40/- (in appeal No. C/13673/2013) in terms of Notification No. 102/2007 dated 14.09.2007 claiming refund of 4% Special Additional Duty (SAD) paid at the time of import. The Adjudicating Authority sanctioned Rs. 11,25,154/- but rejected balance amount of Rs. 8,90,850/- as the refund claim was filed after one year from the date of import of goods. Similarly, refund claims in other cases were also rejected on the grounds of limitation. Aggrieved by the said orders, the appellants filed appeals before the Ld. Commissioner (Appeals), who inturn, rejected the same. Hence, the present appeals.
3. Ld. Consultant Shri P. P. Jadeja for the appellants submits that in case of rejection of refund of Rs. 8,90,850/- the reason for delay was due to non-receipt of original documents, which were misplaced. Therefore, the delay is unintentional and refund on non-compliance of this procedural condition should not be rejected. In relation to rejection of refund claims in other cases the Ld. Consultant submits that there had been delays occurred due to same reason and hence should have condoned. It is his contention that substantive right of refund accrued to the appellants as prescribed under Notification No. 102/2007 dated 14.09.2007, which cannot be defeated for procedural non-compliance. In support, the Ld. Consultant referred to the judgements of Honble Gujarat High Court and Honble Delhi High Court in the cases of Commissioner of Customs vs. Posco India Delhi Steel Processing Centre P. Ltd. 2014 (299) ELT 263 (Guj.), Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi 2014 (304) ELT 660 (Del.) and Pee Gee International vs. Commissioner of Customs, ICD, Tughlakabad, New Delhi 2016 (343) ELT 72 (Del.).
4. Per contra, the Ld. AR for the Revenue submitted that the period of limitation of prescribed under Clause (c) of Notification No. 102/2007 dated 14.09.2007 inserted thereunder through amending Notification No. 93/2008 dated 01.08.2008, clearly prescribes that the importers filing claim of refund of the Additional Duty, should be before the expiry of one year from the date of payment of the said duty. It is his contention that the period involved in appeals are after 01.08.2008 and the refund claims being filed after one year, therefore, the refunds are barred by limitation. Distinguishing the judgement of the Honble Bombay High Court in Sony India Pvt. Ltds case, he has submitted that the question was, in absence of any period of limitation prescribed, under the original Notification No. 102/2007 dated 14.09.2007, whether the period of limitation prescribed under Section 27 of the Customs Act, 1962 could be applicable. Therefore, the said judgement is not applicable to the facts of the present case.
5. Heard both sides. I find that the Notification No. 102/2007 dated 14.09.2007 as amended by Notification No. 93/2008 w.e.f. 01.08.2008 reads as follows:-
Spl. CVD refund claim to be filed within one year Amendment to Notification No. 102/2007-Cus.
In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby makes the following amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 102/2007-Customs, dated the 14th September, 2007 which was published in the Gazette of India, Extraordinary, vide number G.S.R. 598 (E), dated the 14th September, 2007, namely :-
In the said notification, in paragraph 2, for sub-paragraph (c), the following shall be substituted, namely, - (c)?the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs;.
Undisputedly, the refund claims in all these appeals pertain to the period of after 01.08.2008. Therefore, as rightly pointed out by the Ld. AR for the Revenue the principle of law laid down by the Honble Bombay High Court in Sony India Pvt. Ltds case cannot be made applicable to the present case. On the other hand, the judgement of the Honble Gujarat High Court in the case of Indian Oil Corporation Ltd. Vs. UOI 2016 (342) ELT 48 (Guj.) is squarely applicable to the facts of the present case, whereunder it s held that the limitation prescribed for refund cannot be extended. Their Lordships observed as:-
13. We are unable to uphold the contention that such period of limitation was only procedural requirement and therefore could be extended upon showing sufficient cause for not filing the claim earlier. To begin with, the provisions of Section 11B itself are sufficiently clear. Sub-section (1) of Section 11B, as already noted, provides that any person claiming refund of any duty of excise may make an application for refund of such duty before the expiry of one year from the relevant date. Remedy to claim refund of duty which is otherwise in law refundable therefore, comes with a period of limitation of one year. There is no indication in the said provision that such period could be extended by the competent authority on sufficient cause being shown.
6. In the result, the appeals are dismissed.
(Order pronounced on30.06.2017) (D. M. Misra) Member (Judicial) G.Y. 4 Appeal Nos. C/13673-13675, 13917/2013, C/10507/2014, C/10538/2016