Custom, Excise & Service Tax Tribunal
M/S. M.S.Metals vs Commissioner Of Customs (Preventive), ... on 25 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.C/75757/2014
(Arising out of Order-in-Appeal No.600/Pat/Cus/Appeal/2014 dated 18.02.2014 passed by the Commissioner (Appeals) Customs, Central Excise, Patna)
FOR APPROVAL AND SIGNATURE
Honble Shri H.K.Thakur, 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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. M.S.Metals
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs (Preventive), Patna
Respondent (s)
Appearance:
Sri Manmohan Gupta, Advocate for the Appellant (s) Sri S.K.Naskar, AC(AR) & Sri K.Choudhary, Supt.(AR) for the Respondent (s) CORAM:
Honble Shri H.K.Thakur, Member (Technical) Date of Hearing:-25.08.2016 Date of Pronouncement :- 25.08.20016 ORDER NO.FO/A/75895/2016 Per Shri H.K.Thakur
1. This appeal has been filed by the appellant against Order-in-Appeal No. 600/Pat/Cus/Appeal/2014 dated 18.02.2014 passed by the Commissioner (Appeals), Patna as First Appellate Authority.
2. Sri Manmohan Gupta (Advocate) appearing on behalf of the appellant argued that the issue involved in the present appeal is rejection of appellants refund claim as time barred under Notification No.102/2007-Cus. dated 14.09.2007 as amended by Notification No.93/2008-Cus. dated 01.08.2008. Ld. Advocate argued that the same issue has been settled by the Delhi High Court in the case of Sony India Pvt. Ltd.-vs.-Commr.of Cus, New Delhi[2014(304) E.L.T.660(Del.)] and that the order passed by the Delhi High Court has been followed by CESTAT, Delhi in the case of International Refrigeration Corporation-vs.-C.C., New Delhi[2016(332)E.L.T. 824(Tri.-Del.)] and CESTAT, Mumbai in the case of Purab Textile Pvt. Ltd.-vs.-Commr.of Cus(Import), Mumbai-II[2015(330)E.L.T.414(Tri.-Mumbai)]. It is the case of the Ld. Advocate that the appeals allowed by CESTAT, Delhi and CESTAT, Mumbai were for the period after amendment under Notification No.93/2008-Cus. dated 01.08.2008 when period of one year for filing refund claim was also prescribed. That in view of the above case laws appeal of the appellant may be allowed.
3. Sri S.K.Naskar, AC(AR) and Sri K.Choudhari, Suptd.(AR) appearing on behalf of the Revenue argued that issue before Honble Delhi High Court as framed in the opening paragraph of the judgement Sony India Pvt. Ltd.-vs.-Commr.of Cus, New Delhi (Supra) was whether amendment carried out by Notification No. 93/2008-Cus. dated 01.08.2008 will have retrospective effect or not. That the period involved in the case before Honble Delhi High Court was thus before 01.08.2008 when amending Notification No. 93/2008-Cus. dated 01.08.2008 was not existing. It is also their case that CESTAT, Delhi and CESTAT, Mumbai have not correctly applied the ratio laid down by Honble Delhi High Court in the case of Sony India Pvt. Ltd.-vs.-Commr.of Cus, New Delhi (Supra).
4. Heard both sides and perused the case records. The issue involved in the present appeal is whether First Appellate Authority has correctly rejected the refund claim of the appellant as time barred under Notification No. 102/2007-Cus. dated 14.09.2007 as amended by Notification No. 93/2008-Cus. dated 01.08.2008.
5. It is observed that the original Notification NO.102/2007-Cus. dt. 14.09.2007 was not having any time limit for filing refund claim and time period of one year from the date of payment of said additional duty of customs was added to the original Notification No. 93/2008-Cus. dated 01.08.2008 as follows:
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;.
6. It is observed from the case laws of Sony India Pvt. Ltd.-vs.-Commr.of Cus, New Delhi that following was the question of law referred to Honble High Court:
[Order per : S.Ravindra Bhat J.]. This is an appeal under Section 130 of the Customs Act, 1962, against the order dated 19.06.2013[2013 (297) E.L.T. 297 (Tribunal)] of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dismissing the appellant companys appeal challenging the denial of refund claim under Notification No.102/2007-Cus., read with Section 27 of Customs Act. The question of law that arises for determination in this appeal is Can period of limitation for preferring refund claims, specified in the amending Notification No.93/2008-Cus be made applicable with retrospective effect, in absence of a limitation period in the original Notification No.102/2007-Cus., in respect of goods imported prior to the issue of the amending notification.
7. While disposing of the above question of law it was held by Honble Delhi High Court that amending Notification No. 93/2008-Cus. dated 01.08.2008 cannot be said to have retrospective effect and the time limit prescribed under Section 27 of the Customs Act, 1962 cannot be made applicable to the refunds under original Notification No. 102/2007-Cus. dated 14.09.2007. It was also expressed by Honble High Court in paragraph-18 of the case law of Sony India Pvt. Ltd.-vs.-Commr.of Cus, New Delhi (Supra) that amending Notification must be read down to the extent that it imposes a limitation period. It has not been ruled out by the Delhi High Court that limitation of one year prescribed as per Notification No. 93/2008-Cus. dated 01.08.2008 will not be applicable to the refunds after 01.08.2008 also. If that view is taken then period of one year prescribed by Notification No. 93/2008-Cus. dated 01.08.2008 will become redundant. In view of the above observations views expressed by CESTAT, Delhi in the case of International Refrigeration Corporation-vs.-C.C., New Delhi (Supra) and CESTAT, Mumbai in the case of Purab Textile Pvt. Ltd.-vs.-Commr.of Cus(Import), Mumbai-II (Supra) do not appear to be the correct appreciation of law and are respectfully differed with.
8. As per Clause (c ) of Notification No. 102/2007-Cus. dated 14.09.2007, as substituted by Notification No. 93/2008-Cus. dated 01.08.2008, refund claim of additional duty of customs paid on imported goods with the jurisdictional customs officer is required to be filed within one year from the date of payment of said additional duty of customs. In the present appeal the dispute is from 25.03.2011 to 18.09.2012 which is after 01.08.2008 when Notification No. 93/2008-Cus. dated 01.08.2008 was issued and operative in the original Notification No.102/2007-Cus dated 14.09.2007. It has not been disputed by the appellant that their refund claim were filed after one year as prescribed in the notification. Accordingly, there is no substance in the appeal filed by the appellant and the same is dismissed by upholding the OIA dated 18.02.2014 passed by the First Appellate Authority.
(Operative Portion of the order was pronounced in the open court.) S/d.
(H.K.Thakur) MEMBER IAL) MEMBER(TECHNICAL)
SS
1
Appeal No.C/75757/2014