Commissioner Of Customs, ... vs M/S Dozco (India) Pvt Ltd

[Arising out of Orders-in-Appeal No. 37 to 40/2010 dated 20/08/2010 passed by Commissioner of Customs, Central Excise & Service Tax (Appeals),Visakhapatnam) ] For approval and signature:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Customs, VISAKHAPATNAM- CENTRAL EXCISE BUILDING, PORT AREA, VISAKHAPATNAM, - 530035 Appellant(s)

Versus M/s DOZCO (INDIA) PVT LTD PLOT NO.243, BLOCK,-D, INDUSTIAL DEVELOPMENT AREA, AUTO NAGAR, VISAKHAPTANAM, 530012. Respondent(s)

Appearance:

Mr. Mohd Yusuf, A.R. For the Appellant Mr. S.C. Choudhary, Consultant For the Respondent Date of Hearing: 22/05/2015 Date of Decision: 22/05/2015 CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 21171 to 21174 / 2015

In all these appeals, issue involved is same and therefore, all the four appeals taken together for the disposal and a common order is passed.

2. The issue involved is whether refund of SAD claimed by the assessee-respondent relating to the period prior to the date of issue of amending Notification No. 93/2008 dated 1.8.2008, time limit of one year prescribed for availing refund claimed under Notification No. 93/2008-Cus would be applicable or not.

3. Learned A.R. submits that all the refund claims were filed after amending notification which had come into force on 1.8.2008. Therefore, time-bar prescribed under Notification No. 93/2008 should have been applied and decision of the Commissioner taking a view that one year period will not apply to this case for refund arising prior to 1.8.2008 is not correct. The Commissioners decision that one year period will not be applied for refund claim arising prior to 1.8.2008 would amount to a situation where refund claim can be filed without any limitation and there cannot be a situation wherein unlimited time can be allowed for filing refund claim. The third ground taken by learned A.R. is that in the absence of express provision, a subsequent amendment making express provision would have retrospective effect.

4. Learned consultant on behalf of the respondent relies on the decision of the Honble High Court of Delhi in the case of Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi [2014 (304) E.L.T. 660 (Del.)] and submits that time limit of one year would not be applicable to all the refund claims under consideration by the Tribunal.

5. I have considered the submissions made by both sides. I find that the issue is squarely covered by the decision of the Honble High Court of Delhi in the case of Sony India Pvt. Ltd. (supra). In such a situation, I do not consider it necessary to discuss various submissions made by learned A.R. on behalf of the Revenue-appellant.

6. In Sony India Pvt. Ltd. case, Honble High Court has framed the issue for determination as under :

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. Finally, in paragraph 17, Honble High Court reached a conclusion that time limit fixed in Notification No. 93/2008 dated 1-8-2008 itself cannot be sustained in the absence of inclusion of refund claim for SAD under Section 77 of Customs Act, 1962. The relevant paragraph is reproduced as under :

17. Plainly, therefore. Section 27 was understood as not applying to SAD cases, even though it was in the statute book for many years. Yet, with the introduction of the circular and then the notification (No. 93), the Customs authorities started insisting that such limitation period which was prescribed with effect from 1-8-2008 (by notification) became applicable. There is a body of law that essential legislative policy aspects (period of limitation being one such aspect) cannot be formulated or prescribed by subordinate legislation. Khemka and Co. (Agencies) Private Ltd. v. State of Maharashtra, (1975) 35 STC 571 and other decisions are authority on the question 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 a period of limitation for the first time, without statutory amendment, through a notification, therefore could not prevail.

7. Since the Honble Delhi High Court has already taken a view and no contrary decision has been produced before me, following the precedent decision, all the appeals are rejected.

(Pronounced in open court)

(B.S.V.MURTHY) TECHNICAL MEMBER /vc/