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Judgment
The issue involved is that whether the appellant’s refund claim in respect of SAD paid is admissible under Notification 102/2007-Cus dated
14.09.2007 as amended from time to time and whether the time period of one year as provided under Section 27 shall be reckoned from the date of
actual payment of SAD or from the finalization of the assessment.
Shri Kuntal Parikh, Learned counsel appearing on behalf of the appellant submits that at the time of payment of SAD the assessment was
provisional i.e. on 29.8.2013 thereafter, the Bill of entry was finally assessed on 7.1.17 and they have paid the differential SAD of Rs.23,901.10/- on
7.1.17 and thereafter, the refund claim was filed for the entire duty that is the provisional SAD paid on 29.8.13 as well as the differential SAD paid on
7.1.17. He submits that this issue is squarely covered by the judgment of Hon’ble Delhi High Court in the case of PIONEER INDIA
ELECTRONICS (P) LTD. V/s. UOI- 2014 (301) ELT 59 (Del.) wherein the identical facts were involved. He submits that in the said judgment, the
Hon’ble Delhi High Court also quashed the boards circular No.23/2010 dated 29.7.2010 which provided that the refund claim should be filed from
date of actual payment of SAD and not from the date of final assessment. Therefore, as per the aforesaid judgment of Delhi High Court the refund
filed within one year is well within time.
Shri Rakesh Kumar Bhaskar, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the
impugned order. He submits that as per the Notification No.102/2007- Cus and amendment Notification No. 93/2008-Cus dated 1.8.2008 the refund
claim should be filed within one year from the date of payment of SAD. He placed reliance on this tribunal’s following judgments: Â
· 2020 (371) E.L.T. 577 (Tri.-Mumbai) HONDA SIEL CARS INDIA LTD. Versus COMMR. OF CUS. (EXPORT PROMOTION),
MUMBAI-I Â
· J J POLY IMPEX P LTD Vs. C.C.-AHMEDABAD on 30 JUNE, 2017 Â
· M/s THAIM TRADING CO Vs. C.C. MUNDRA on 10 JANUARY, 2018
· 2013 (292) E.L.T. 102 (Tri.-Del.) GLOBAL INTERNATIONAL Vs. COMMISSIONER OF CENTRAL EXCISE, KANPUR Â
· 2016 (335) ELT A160 (SC)-INTERNATIONAL STEEL CORPORATION Vs. COMMISSIONER
I have heard both the sides and perused the records. I find that the issue is no longer res-integra as very identical issue and facts have been
considered by the Hon’ble Delhi High Court. The dispute raised by the revenue is that the period of one year as provided under Section 27 for
filing refund claim under Notification No.102/2007-Cus is one year from date of actual payment. In the present case the facts is not under dispute that
the assessee though paid SAD on 18.1.17 but this payment is under the provisional assessment of “Bill of Entryâ€. Admittedly the same bill of
entry have been finalized on 07.01.17 when the appellant has paid the differential amount of SAD therefore, even though the payment was made on
29.8.13 even the said payment has been finalized with the final assessment of Bill of Entry. Therefore, the date of finalisation of payment should be
from the date of finalisation of Bill of Entry i.e. 07.1.17. If this is so, then one year period will start from date of finalization of Bill of Entry which in
the present case is 07.1.17. The refund claim was filed on 18.1.17 which is within one year from the date of finalization of Bill of Entry. The
Hon’ble Delhi High Court in the case of PIONEER INDIA ELECTRONICS (P) LTD. (supra) considering the same issue held that one year
period should be calculated from the date of finalization of the assessment in a case were earlier the bill of entry has been provisionally assessed. The
relevant para of the order is reproduced below:-
“28. Section 27 of the Act is a general provision relating to refund of any duty. Dictionary meaning of the word ‘any’ can indicate
‘all’ or ‘every’ as well as ‘some’ or ‘one’. Usage depends upon the context of subject matter. In the context of
Section 27 of the Act, the word ‘any duty’ should and would encompass ‘all’ and ‘every’ type of refund payable under
the Act and in terms of the notification issued under Section 25.
The reason why Explanation II to Section 27 refers to final assessment and not provisional assessment is apparent and logical. Till final
adjudication order is passed and duty is ascertained, quantum of the duty paid or payable is uncertain. The amount of refund will be
determinable upon final assessment and not earlier. Even when there is an exemption and duty is refundable post import, the refund cannot
be ascertained and will be fluctuating till final assessment order is passed. The quantum of refund would depend upon the final
adjudication and not upon provisional assessment. No person can lodge a claim for refund without knowing or quantifying the amount
which is to be refunded. As per the final adjudication, refund may not be payable, or quantum thereof may increase or decrease.
Circular No. 23 of 2010/Custom issued on 7th September, 2010 (sic) stipulates that the date of payment of provisional duty and not the
date of final adjudication is determinative for computing the limitation period of refund under Notification No. 93 of 2008 issued on 1st
August, 2008, can be faulted for many reasons. These are as under : i. As per Section 25(1), Central Government is empowered to issue a
notification granting exemption i.e. grant exemption generally or absolutely or subject to conditions from whole or any part of custom duty
leviable on goods. A notification cannot restrict the benefit or impose more rigorous or severe terms than the one prescribed under the Act.
Notification can liberalise and grant exemption. Indulgence and benevolence can be an objective of a notification and restricted or shorter
period of refund is not postulated. Notification cannot impose more deleterious terms and reduce the period of limitation for refund of
claim. (Sub-section 2A to Section 25 is not applicable)
ii. Section 27 of the Act prescribes period of limitation. The period of limitation under the said Section cannot be curtailed by way of a
notification but a notification can extend and increase the period of limitation. Similarly, a circular cannot reduce the period of limitation
for seeking refund stipulated in Section 27 of the Act.
iii. Section 27 applies to all refunds whether due and payable pursuant to appellate orders or court orders or otherwise in terms of
exemption notification under Section 25(1) or special orders under Section 25(2) of the Act.
iv. The expression ‘date of payment’ used in Notification No. 93 of 2008 dated 1st August, 2008 can mean the date of final
assessment. The said interpretation would be in accordance and as per explanation II to Section 27. Similar expression has been used in
Section 27(1). Circular issued on 29th July, 2010 accepts that in some cases refunds under the notification dated 1st August, 2008 had been
issued on a claim being made within one year from date of final assessment and beyond one year from the date of provisional assessment.
The circular however, stipulates that the claim for refund would be entertained under the notification dated 1st August, 2008, if it is made
within one year from payment of duty and not final assessment. This may result in reducing the period. Assuming that the issue of date of
payment was debatable, the Board did not deem it appropriate to fix a period or time limit during which claims of refund should be
entertained in cases where the Assessee bonafidely believed and were acting on the presumption that period of one year was to be computed
from the date of final assessment. The said belief was not ill founded but based on sound logic and reasoning. The Board while issuing the
circular would have been fair and just and fixed a time limit during which past claim of refund could be entertained with a reference to the
date of final assessment.
In view of the above discussion, we feel that it will be proper to harmoniously construe and interpret notification dated 1st August, 2008
and Section 27 read with Circular dated 29th July, 2010 by holding that an Assessee can make a claim for refund under Notification No. 93
of 2008 dated 1st August, 2008 either by filing an application for refund within the limitation period specified under Section 27 of the
Customs Act, 1962 or within the extended limitation period of one year from the actual date of payment even, if the said payment made was
pursuant to provisional assessment. The longer of the two periods i.e. the period specified under Section 27 or the notification dated 1st
August, 2008 read with Circular No. 23/2010-Custom, dated 29th July, 2010 would be applicable.
The Circular No. 23/2010-Customs insofar as it stipulates that the provisions of Section 27 of the Act do not apply to the Notification
cannot be sustained to the extent indicated above.â€
3.1 In view of the above observation of the Hon’ble Delhi High Court the one year period for filing refund claim under Notification No.102/2007
as amended from time to time should be reckoned from date of finalization of assessment of bill of entry. On this interpretation the board also issued a
circular no. 23/2010-Cus wherein, it was clarified that one year should be taken from the date of actual payment irrespective whether it is provisional
assessment or final assessment. However, the Hon’ble High Court dealing with the very same circular since concluded that one year should be
counted from the date of the final assessment, the said circular was held ultravires and quashed.
As regard the judgments cited by the learned authorized representative, I find that the facts in those cases are entirely different from the facts of
the present case. As in the present case facts is bill of entry has been initially provisionally assessed and part payment of duty was made and then
subsequently at the time of final assessment the remaining differential duty was paid. Whereas, in the cases cited by the learned authorized
representative there is no issue of provisional assessment. In one of the case of GLOBAL INTERNATIONAL Vs. COMMISSIONER OF
CENTRAL EXCISE, KANPUR, though the facts of provisional assessment was involved however, this decision of the tribunal has not considered
the judgment of Delhi High Court in the case of PIONEER INDIA ELECTRONICS (P) LTD. (supra) therefore, all the judgments cited by learned
Authorized Representative are clearly distinguished being not applicable.
As per my above discussion, I am of the clear view that the limitation of one year has to be reckoned from the date of finalization of Bill of entry. In
the present case, the refund claim was filed within one year from the date of finalization therefore, it is not time barred.
Accordingly, the impugned orders are set aside. Appeal is allowed with consequential relief.
(Dictated & Pronounced in the open court)