M/S. International Refrigeration vs Commissioner Of Customs

[Arising out of Order-In-Appeal No. D I EXP/666/13 dated 27/11/2013 passed by Commissioner of Customs, (Appeals), New Delhi]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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?

M/s. International Refrigeration Appellants

Corporation

Vs.

Commissioner of Customs Respondent

New Delhi

Appearance:

None for the Appellants

Shri M S Negi, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 26.08.2015

ORDER NO. FO/ 52698/2015-Cus (SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order rejecting the refund claim on the ground that refund claim is filed beyond the time limit prescribed as per notification No. 93/2008 Cus dated 01.08.2008, the refund claim is required to be filed within one year from the date of payment of additional duty. Therefore, refund claim is beyond the period of limitation. Accordingly, same was rejected. Aggrieved from the said order, appellant is before me.

2. None appeared on behalf of the appellant nor is there any request for adjournment. On perusal of the record, I find that the matter has been listed several times on earlier occasions. Therefore, appeal is taken up for disposal on its own merits and on the basis of record placed before me.

3. On the other hand, learned AR reiterated the finding of the impugned order.

4. Perused the records. On perusal of the record, I find that the issue came up before the Honble High Court of Delhi in the case of Sony India Pvt. Ltd. vs. Commissioner of Customs, New Delhi [2014 (304) ELT 660 (Del)] wherein the Honble High Court has held that notification No. 93/2008 dated 01.08.2008 is not applicable and cannot be made operative through subordinate legislation. I observe that in this case, the appellant has filed refund claim under Notification No. 102/2007-Cus. Dated 14.9.2007 wherein no time has been prescribed for filing refund claim . Therefore, I hold that rejection of refund claim as time barred is not sustainable. Consequently, impugned order is set aside. Appeal is allowed with consequential relief, if any.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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