The Commissioner Of Customs vs M/S Octel Networks Pvt Ltd
2021 Latest Caselaw 5403 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 03RD DAY OF DECEMBER, 2021

                     PRESENT

        THE HON'BLE MRS.JUSTICE S.SUJATHA

                       AND

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR


                 CSTA NO.6/2020

BETWEEN:

THE COMMISSIONER OF CUSTOMS,
AP & ACC COMMISSIONERATE,
DEVANAHALLI,
BENGALURU-560 300.
                                        ...APPELLANT

(BY SRI VIKRAM A.HUILGOL, ADVOCATE)


AND:

M/S OCTEL NETWORKS PVT. LTD.,
11TH MAIN, HAL II STAGE,
INDIRANAGAR,
BENGALURU-560 008.
KARNATAKA.
                                      ... RESPONDENT

(BY SMT. RUKMANI MENON, ADVOCATE THROUGH V/C)


    THIS CSTA IS FILED UNDER SECTION 130 OF THE
CUSTOMS ACT, ARISING OUT OF ORDER DATED:
                             2




25/10/2019 PASSED IN FINAL ORDER NO.20884/2019 BY
THE CESTAT, SOUTH ZONAL BENCH, BENGALURU AND
ETC.,

     THIS CSTA COMING ON FOR HEARING THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is filed by the Revenue under Section

130 of the Customs Act, 1962, (for short, "the Act of

1962") assailing the final order No.20884/2019 dated

25.10.2019 passed by the Customs, Excise and

Service Tax Appellate Tribunal, South Zonal Bench,

Bengaluru, ("CESTAT" for short), whereby the appeal

filed by the Revenue has been dismissed.

2. The appeal has been admitted by this Court

to consider the following substantial questions of law:

"1. Whether on the facts and in the circumstances of the case, the CESTAT was correct in holding that neither Section 27 of the Customs Act, 1962 nor Notification No.93/2008 dated 1-8-2008 can impose limitation on the right to claim refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act?.

2. Whether on the facts and in the circumstances of the case the CESTAT was correct in upholding the order of the Appellate Commissioner by holding that the limitation of one year for claiming refund of Additional Duty of Customs paid under Section 3(5) of the Customs Tariff Act would commence from the date of sale and not payment of duty contrary to the Notification No.93/2008 dated 1-8- 2008 issued in exercise of powers under Section 25(1) of the Customs Act 1962?"

3. The issue involved herein is no more res

integra in view of the order passed by this Court in

CSTA.No.2/2019 (dated 14.09.2021) in the case of

the Commissioner of Customs Vs., M/s Molex India

Private Limited, whereby the Co-ordinate Bench of this

Court (Hon'ble SSJ was a member) has categorically

observed that neither Section 27 of the Act of 1962

nor a notification under Section 25(1), such as the

amended notification No.93/2008-Cus can be used to

impose a limitation period and the right to claim

refund. In the present case, the contention of the

Revenue that the period of one year during the

relevant period is the period of limitation prescribed

under Section 27 of the Act of 1962 for refund of claim

as per Notification No.102/2007 is wholly untenable

for the reason that the refund of SAD would be

claimed by the assessee subsequent to completion of

the assessment. In many cases, as the SAD would be

refundable only on subsequent sale, which is not in

the control of the assessee. The Co-ordinate Bench

has also referred to the judgment of Hon'ble High

Court of Delhi in the case of Sony India Private

Limited Vs. Commissioner of Customs reported in

(2014 [304]ELT 660[DEL]), which has been

followed by the CESTAT in dismissing the appeal filed

by the Revenue. It is, thus, clear that no limitation

period can possibly be imposed for advancing a refund

claim, since SAD levied under Section 3(5) of the

Customs Tariff Act, 1975 is refundable only on

completion of subsequent sale. Given the vagaries of

the market, the importer has limited control over the

sale when it would be complete.

4. In view of the well reasoned order of the

Tribunal, we are not inclined to interfere with the

same as no perversity or irregularity is found in the

order impugned. Accordingly, we answer the

substantial questions of law in favour of the assessee

and against the Revenue.

5. In the result, the appeal stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

PB