[Order]. - Issue notice.
2. Mr. Satish Kumar, Sr. Standing Counsel accepts notice on behalf of respondent.
3. The following question of law arises for consideration : -
“Did the Tribunal fall into error in rejecting the appellant’s claim for refund of Rs. 5,76,180/- on the ground that in terms of Notification No. 102/2007, the application is time barred?”
4. The appellant had imported consignments of aluminium and scrap tablets on various dates through six bills of entry. In terms of Section 3(5) of the Customs Tariff Act, 1975, special additional duty (S.A.D.) was also leviable. It was in these circumstances that the appellant paid a sum of Rs. 5,76,180/-. It thereafter sought refund of these amounts. The procedure prescribed for seeking refund mandated the furnishing of the supporting documents evidencing the sale and payment of VAT applicable to the goods. Lower authorities were of the opinion that the claim for refund was time barred in view of the prevailing law especially Notification No. 102/2007. In addition, in respect of one of the bills of entry, the objection made was that the consignee/importer had not paid VAT, but a third party, i.e., M/s. Grand Metal Industries had paid VAT and that the appellant could not, therefore, legitimately claim refund of these amounts. The appellant’s appeal was rejected by the Tribunal which reasons that the prevailing position as to the limitation was in no manner altered by issuance of Notification No. 102/2007 which did not have retrospective effect.
5. This Court has recently in its judgment Sony India Pvt. Ltd. v. The Commissioner of Customs, New Delhi (CUSAA 3/2014, decided on 16-4-2014 [ (Del.)]) held that the expression “so far as may be” occurring in Section 3(5) of the Customs Tariff Act cannot ipso facto bring in or refer to the period of limitation prescribed in Section 27 of the Customs Act. It was held that the nature of the duty is unlike the regular incident of customs duty, which is definite; special additional duty is to be compensated the moment conditions for refund are fulfilled. The prevailing view of the Revenue - based upon which it issued Circulars and Notifications in 2008 that the period of limitation of one year was to be calculated based upon the date of payment of the S.A.D. and not based upon the date of further sale or payment of VAT, was held to be erroneous. In this view of the matter, it is held that the appeal, at least as far as the undisputed amounts with respect to the 5 bills of entry are concerned, requires to be allowed. So far as the 6th bill of entry is concerned, appellant asserts that the C.B.E. & C. Circular No. 16/2008 paragraph (viii) covers the aspect and that payments made by clearing or forwarding agents to satisfy VAT demands would also fall in the legitimate claim that can be pressed by importers. In these circumstances, the refund application of the appellant with respect to bill of entry dated 5-11-2007 for the sum of Rs. 82,123/- is hereby remitted to the Assistant Commissioner of Customs (Refund), ICD, Tughlakabad, New Delhi, for verification and appropriate orders.
6. The appeal so far as it concerns the other 5 bills of entry is allowed. Consequently, the appeal is partly allowed in the above terms.