C.C.-New Delhi (ICD TKD) (Import) Vs. Aggarwal Trading Comapany - (Customs, Excise and Service Tax Appellate Tribunal) (25 Oct 2018)

In absence of statutory provisions, no inherent powers of Court exists to condone delay

MANU/CE/0490/2018

Customs

In facts of present case, the Assessee, had filed a refund claim under special refund mechanism as provided for under the exemption Notification No. 102/2007-Cus : MANU/CUST/0175/2007 dated 14.09.2007 . The claim is with respect to special additional duty of Customs (SAD) leviable under sub-Section 5 of Section 3 of Custom Tariff Act, 1975.

The Assistant Commissioner vide order has rejected the said claim on the ground that, the same has been filed after the prescribed time limit of one year from the date of payment and as such is rejected as being barred by time. Being aggrieved, the Assessee approached the first appellate authority. The Appeal of Assessee was allowed accepting the refund claimed. Department being aggrieved is in Appeal. The moot question to be adjudicated in the present case is as to whether there is any time limit prescribed by law for filing the refund claim of additional duty of Customs as stands exempted vide the Notification No. 102/2007 : MANU/CUST/0175/2007.

No doubt, the said Notification is silent about any time period for filing the said claim. But the Notification exempts the goods in first schedule of Customs Tariff Act from being leviable to the additional duty of Customs. However, the Notification itself mandates the deposit of the said additional duty at the time of importation of the goods and thereafter to get the refund. It becomes abundantly clear that, the importer has the knowledge of his entitlement to file the refund of additional duty of Customs at the time of the payment of said duty itself i.e. at the time, the product being in first schedule (under the exempted category) is imported. Resultantly, for claiming the refund of additional duty nothing else has to happen or to be done by the assessee after the payment of said additional duty of Customs.

Also, the amending Notification No. 93/2008 : MANU/CUST/0156/2008 is arising out of the statute, i.e. Section 25(2A) of the Customs Act, 1962 hence, the findings of the Commissioner(Appeals) that the amendment introducing one year from the date of payment of additional duty as a time to claim the refund thereof is without statutory amendment, is not sustainable rather is opined to be legally erroneous. Otherwise also, the said amendment came into force w.e.f. 01.08.2008 that too in accordance of another statutory provision, i.e. Section 25(4) of the Customs Act.

The Hon'ble Apex Court in the case Naseeruddin Vs. Sitaram Aggarwal has held that, in the absence of statutory provisions, no inherent powers of the Court exists to condone the delay. It was also held that a statutory right has to be exercised in the mode, manner and limitation specified in the special statute itself.

The refund claim of additional duty due to the exemption flowing out of Notification No. 102/2007 : MANU/CUST/0175/2007 has to be filed within one year in view of the subsequent Notification No. 93/2008-Cus : MANU/CUST/0156/2008 which still holds good and also in view of Section 27 of the Customs Act, 1962. The Commissioner (Appeals) has committed an error while giving an expanded interpretation qua limitation to favour assessee. Said Order is set aside and appeal is allowed rejecting the impugned refund claimed.

Relevant : Naseeruddin Vs. Sitaram Aggarwal MANU/SC/0100/2003: A.I.R. 2003 (S.C.) 1543

Tags : REFUND CLAIM GRANT VALIDITY