Custom, Excise & Service Tax Tribunal
M/S Audioplus vs Commissioner Of Customs (Imports) on 16 November, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. C/871/09 Mum
(Arising out of Order-in-Appeal No. 225 (CRC-IIB)/2009 (JNCH) dated 26.05.2009 passed by the Commissioner of Customs (Appeals), Mumbai II)
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
1. Whether Press Reporters may be allowed to see : No
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 : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s Audioplus
Appellant
Versus
Commissioner of Customs (Imports)
Raigad
Respondent
Appearance Shri C.M. Sharma, Consultant for Appellant Shri B.P. Pereira, JDR for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 16.11.10 Date of Decision : 16.11.10 ORDER NO.
Per : Ashok Jindal By the impugned order the appellant was denied the refund claim of SAD paid by them holding that the refund claim is barred by limitation.
2. The facts of the case are that the appellant paid SAD and filed refund claim of the SAD as per the chart given below:-
Sr. No. File No. B/e No. Date TR6 Challan No. Challan Date Refund Claim Date of filing claim
1. 58 985584 12.11.07 98266961 14.11.07 78277 17.11.08
2. 194 991461 15.11.07 98270684 17.11.07 79851 18.11.08
3. 195 991429 15.11.07 98272582 17.11.07 102839 18.11.08
4. 353 602269 23.11.07 98280891 27.11.07 26807 01.12.08
5. 3211 944511 10.10.07 98233746 11.10.07 113141 20.10.08 The same was denied holding that as per Notification No. 93/2008-Cus dated 01.08.2008 the period for claiming refund of SAD payment is one year. Aggrieved from the said denial of refund claim the appellant is in appeal.
3. Shri. C.M. Sharma, learned Consultant appearing for the appellant submits that prior to 14th September 2007 the refund of SAD was not entitled to the assessees. By Notification No. 102/2007 dated 14th September 07 the assessees were made entitled to claim SAD paid by them on paying VAT/Sales Tax as applicable. In that Notification, no time limit was given for filing the refund claim. By Notification No. 93/2008-Cus dated 01.08.2008 the time limit for filing the refund claim was made but the appellants have paid the duty prior to the Notification No. 93/08. Hence the duty paid by them before the said Notification is having no time limit and the appellant is entitled for the refund claim. To that extent, he sought to set aside the impugned order.
4. On the other hand, Shri B.P. Pereira, learned JDR submits that a clarification was sought by the Trade for the time limit for filing the refund claim in pursuance of Notification No. 102/07 and the same was clarified by the department vide Circular No. 6/2008-Cus dated 28.04.2008 wherein it was clarified that the period for filing the refund application is not hit by time limit as prescribed under Section 27 of Customs Act, 1962 and it was also clarified that for the cases of refund claim of SAD, the normal time limit should be one year. In this case it is no doubt that the appellant has filed the refund claim beyond the prescribed period of one year, hence the lower appellate authority has rightly denied the refund claim on the ground of time bar. Hence the impugned order is to be sustained.
5. Heard and considered.
6. I have perused the records and examined the submissions made by both the sides. It is no doubt that the appellant has paid the duty in October/November 2007 in pursuance to imports made by them and as per the Notification No. 102/2007 the appellant is entitled for refund claim of SAD paid by them on producing the documents paying duty as well as sales tax/VAT. As per Notification No. 102/2007 which was applicable at the time of the duty so paid by the appellant there was no time limit for filing the refund claim. It is not in dispute. The only dispute arose when the Notification No. 93/2008 came into force with effect from 01.08.2008. In the various decisions of this Tribunal as well as of the Honble apex court particularly in the case of Suchitra Components Ltd. vs. CCE Guntur 2007 (208) ELT 321 (S.C.) it was held that beneficial circular to be applied retrospectively while oppressive circular applicable prospectively. In this case, it is no doubt that the appellants paid the duty when the Notification 93/2008 dated 01.08.2008 was not in operation. Therefore, the payment of duty in this case is not bound by Notification 93/2008 as the Notification came into force only on 1.8.2008. Any payment of duty made after 1.8.2008, refund of the same shall be entitled, if the same is filed within one year but the duty is payable pursuant to Notification 102/2007 dated 14th September 07 prior to 1.8.2008, the limitation period is not applicable in the ratio laid down by the Honble Supreme Court in the case of Suchitra Components Ltd. (supra). Accordingly, the impugned order rejecting the refund claim of the appellant holding time bar, is set aside. The appeal is allowed with consequential relief. (Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 4