Commissioner Of Customs (Import), ... vs Supreme Steel Industries

(Arising out of Order-in-Appeal No. 106(CRC-IIB)/2013(JNCH)/IMP-97 dtd.13.2.2013 passed by the Commissioner of Customs (Appeals), Raigad. )

For approval and signature:

Honble Mr. Anil Choudhary, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical)

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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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Commissioner of Customs (Import), Nhava Sheva : Appellant

VS

Supreme Steel Industries : Respondent

Appearance

Shri Ahibaran, Additional Commissioner (A.R.) for Appellant

Shri A.K. Prabhakar, Advocate for respondent

CORAM:

Mr. Anil Choudhary, Member (Judicial) Mr. P.S. Pruthi, Member (Technical)

Date of hearing : 17/03/2015 Date of decision : 17/03/2015

ORDER NO.

Per : Anil Choudhary

The Revenue is in appeal against the order of the Commissioner (Appeals) who was pleased to set aside the Order-in-Original rejecting the refund claim of the assessee on the ground of limitation, holding that the imports in the case of the assessee are prior to 1.8.2008. Notification No.93/2008 dt. 1.8.2008was issued prescribing the period of limitation as one year. Accordingly, the same will not be applicable and the refund claim to be allowed.

2. The brief facts are that the appellant imported goods vide Bills of Entry filed within the period September 2007 to July 2008 and the Customs Duty was paid vide TR 6 Challans, wherein all the duties were paid prior to 1.8.2008. The assessee importer claimed refund of Additional Duty of Customs as provided under Notification No. 102/2007-Cus dt. 14.09.20078 along with supporting documents. As the said claim was preferred after about 4 years from the date of payment of Customs Duty, including ACD, Vide Order-in-Original dt. 29.10.2012, the refund claim was rejected as time barred, in view of the time limit of one year prescribed vide Notification No. 93/2008 dt1.8.2008. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide the impugned order have held that the limitation will not apply in the case of the appellant as the imports are prior to 1.8.2008 and also paid Customs Duty prior to 1.8.2008. Accordingly, he set aside the Order-in-Original with consequential relief to the assessee. Being aggrieved the Revenue is in appeal before this Tribunal on the ground that the Commissioner (Appeals) have erred and allowed the appeal of the assessee. Limitation is definitely applicable for the period of one year from the date of payment of duty, as the same is issued by way of substitution, in the original notification that the refund of the SAD has to be preferred within a period of one year from payment of duty.

3. The Ld. Counsel for respondent-assessee said that the issue is no longer res-integra. The similar issue was before the Honble Delhi High Court in the case of Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi 2014-TIOL-532-HC-DEL-CUS wherein the question of law that arose for determination in the appeal 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. The Honble High Court have observed that limitation is a ground of substantive right and the same cannot be taken away by way of suppression of notification i.e by way of subordinate legislation as held by Honble Supreme Court in the case of Khemka and Co. (Agencies) Private Ltd. Vs. State of Maharashtra (1975) 35 STC 571. It was further observed that in matters which deal with substantive rights, such as imposition of penalties and other provisions that adversely affect statutory rights, the parent enactment must clearly impose such obligations; subordinate legislation or rules cannot prevail or be made, in such cases. The imposition of period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail. According to the Honble High Court has held amending notification must be read down to the extent that it imposes a limitation period. The question of law framed was therefore, answered in favour of the assessee and against the revenue.

5. Thus the matter is no more res integra and prays for dismissal of the Revenues appeal.

6. Having considered the rival contention. Following the ruling of the Honble Delhi High Court in the case of Sony India Pvt. Ltd. (supra) we hold that in the present case where the imports and duty are made prior to 1.8.2008, the amendment prescribed under Notification No. 93/2008 cannot be made applicable. The appeal of the Revenue is dismissed. The respondent is held to be entitled to the refund. We further direct the concerned adjudicating authority to disburse the refund within a period of 60 days from the date of receipt of this order.

(Pronounced & Dictated in court )

(P. S. Pruthi) Member (Technical)

(Anil Choudhary) Member (Judicial)

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