Order date : 2 November 2022

Fact:

• The appellant, Variety Lumbers Pvt Limited had paid 4% of SAD on the importation of Timber Round Logs.
• Notification no. 102/2007-Cus dated 14.09.2007 stipulates that an importer shall file a claim of Refund of SAD with the jurisdictional customs officer before the expiry of one year from the date of payment of SAD.
• The appellant filed a refund claim for 4% SAD amounting to Rs. 1,51,90,212/- on the basis of exemption allowed under Notification No. 102/2007-Cus dated 14.09.2007.
• It was alleged that the claim for refund was filed by the appellant after the expiry of one year and hence the claim was proved which is hit by limitations.
• On 06.08.2019 a show-cause notice was issued to the appellant for the proposing rejection of the refund claim.
• Being aggrieved, the Appellant filed the present Appeal.

Issue: 

• Whether the refund claim of the appellant is hit by the period of limitation.

Order:

• The Hon’ble court observed that the refund claim was admittedly not filed within the period of one year as prescribed in paragraph 2 of clause C of Notification No. 102/2007-Cus dated 14.09.2007 and the same stands filed within a period of one year from the date of order of Hon’ble Supreme court.
• They also observed that appellant regularly filed the refund and department had not granted the refund after the period of 2009 on the ground that one of the condition of the Notification that refund of SAD would be entitled only if the imported goods were sold as such, has not been complied with.
• Circular No. 15/2010-CUS dated 29.06.2010 also clarified that refund of SAD would not be eligible to the importer in the case there is distinct classification for the imported and the final products that are same in market on which VAT was paid.
• The authorities observed that since the entire matter was pending, the appellant did not file a refund claim for subsequent imports. However, in view of the order passed by the Hon'ble Supreme Court, the appellant filed a refund claim on 17.01.2019 for the goods imported between 29.12.2008 to 03.03.2011.
• As per Section 27(1B) (C), it is clear that a refund claim can be filed in consequence of any judgment decree, or direction of the appellate authority within one year. In this case, it is on record that the issue related to refund of SAD was under litigation and attained finality after the decision of Hon’ble Supreme Court, the limitation for filing the refund claim shall start from date of decision Hon’ble supreme court.
• The refund claim was filed well within the stipulated time period of one year from the relevant date in terms of Section 27 of the Customs Act, 1962.
• The appeal is allowed.