SAD Refund - time limit prescribed by later Notification - whether applicable retrospectively?

PJ/Case laws/2012-13/1061

Case: OM HOUSE HOLD APPLIANCES P. LTD. V/S C.C. (IMPORT), NAHAVA SHEVA

Citation: 2012 (276) E.L.T. 259 (TRI. - MUMBAI)

Issue:- SAD Refund- whether time limit prescribed by amending Notification no. 93/2008-Cus applicable retrospectively?

Brief Facts:- Appellant had cleared goods against the 4 bills of entry no. 803157, 799361, 775758, 768618, dated 25-04-08, 19-04-08, 4-4-08, and 31-3-08 respectively. The appellant claimed the benefit of Notification no. 102/2007-Cus dated 14-9-2007 and claimed the refund of SAD.

The lower Adjudicating Authority rejected the claim of Rs. 5, 56, 000 in respect of bill of entry no. 775758, 768618 on the ground of time bar. Appellant challenged the order before the Commissioner (Appeals). The Commissioner (A) upheld the order of the Adjudicating Authority.

Hence, further appeal is filed before the Tribunal.

Appellant’s Contention: - Appellant contended that they are eligible for the benefit of Notification no. 102/2007-Cus as at the material time there was no limit prescribed under the Notification. However on 1-08-2008 the Notification no. 102/2007-Cus was amended by the Notification no. 93/2008-Cus and time limit for claiming of SAD Refund was provided. The contention is that they paid the duty on 9-4-2008, 2-4-2008 and filed the refund claim on 21-4-2009. They contended that their claim was well within one year. That the Notification will have prospective effect and not the retrospective effect. In this regard, reliance is placed on judgment in Suchitra Components Ltd v/s Commissioner of Central Excise, Guntur [2007 (208) ELT 321 (SC) wherein it was held that beneficial circular is to be applied retrospectively but oppressive circular is to be given effect prospectively. Reliance is also placed on Audioplus v/s Commissioner of Customs (Imports), Raigad [2011 (264) ELT 516 (Tri-Mumbai) wherein relying on Suchitra it was held that assessee will be entitled for refund if the same is filed within 1 year from the date of issue of Notification deciding the case in assessee’s favour.

Respondent’s Contention:- Revenue contended that Board Circular No. 06/08-Cus dated 28.4.2008 prescribes time limit of 1 year. They relied on decision in Mafatlal Industries Ltd v/s Union of India [1997 (89) ELT 247 (SC) wherein it was held that in every case of refund under Section 11B of the Central Excise Act, 1944 or Section 27 of Customs Act, 1962 will be applicable. The Notification is amended w.e.f. 1-8-2008. The law limitation prevailing at material time there will be applicable to the case.

Reliance was also placed on Uttam Steel Ltd v/s Union of India [2003 (158) ELT 274 (Bom) wherein it was held that extension of limitation period does not amount to repeal of old law and enforcement of substantive rights existing on the date when the amended provisions came into force could not be denied by applying Section 6 of the General Clauses Act, 1897. Reliance was also placed on Collector of Central Excise, Jaipur v/s Shree Pratap Commercial Company Pvt Ltd [1987 (31) ELT 603 (Tribunal) and Atma Steels Pvt Ltd and Others v/s Collector of Central Excise, Chandigarh and Others [1984 (71) ELT 331 (Tribunal-LB).

Reasoning of Judgment:- With regard to time limit, the Tribunal noted that if the time limit is reckoned from the date to issue of circular and the date of amending notification. The refund claim filed by appellant is well within 1 year. Reliance was placed on judgment in Suchitra Components Ltd v/s Commissioner of Central Excise, Guntur and Audioplus v/s Commissioner of Customs (Imports), Raigad.

With regard to cases cited by Revenue are not relatable to this case. It was noted the there is no doubt that every refund claim has to be as per Section 11B or Section 27 of the Central Excise Act, 1944 and Customs Act, 1962 respectively but in Notification No. 102/2007-Cus where no time limit was prescribed, the same was prescribed only vide amending Notification No. 93/2008-Cus. Therefore, Section 11B is not applicable to the said Notification which is clear from the amendment to the Notification. It was further held that even if the amendment is not to have retrospective effect, it would nevertheless have retroactive effect and in that view of the matter, the case of petitioners would be covered within the amended period of limitation. Appellant are entitled to rebate of duty. Impugned order set aside.

Decision:- Appeal allowed.

Comment:- It is important decision on limitation which says that the amending oppressive notification or circular is prospective in nature and it cannot applied retrospectively. Only the beneficial notification can be applied retrospectively. This has benefited the assesses a lot. But the field formation should accept this proposition.

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PJ/Case laws/2012-13/1061

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