The main legal point established in the judgment is that no limitation period can be imposed for advancing a refund claim as the right to claim refund accrues only once sale, an entirely market driven event, is complete.

S. Ravindra Bhat, J.

1. This is an appeal under Section 130 of the Customs Act, 1962, against the order dated 19.06.2013 of the Customs Excise and Service Tax Appellate Tribunal (“CESTAT”) dismissing the appellant company’s appeal challenging the denial of refund claim under Notification no. 102/2007-Cus read with Section 27 of Customs Act. The question of law that arises for determination in this appeal is Can period of limitation for preferring refund claims, specified in the amending notification no.93/2008-Cus be made applicable with retrospective effect, in absence of a limitation period in the original Notification No. 102/2007-Cus, in respect of goods imported prior to the issue of the amending notification.

2. The facts briefly are that the appellant is involved in the import, distribution and sale of electronic items and IT products. The appellant had been clearing the imported goods on payment of the applicable custom duties including basic customs duty, additional customs duty and special additional customs duty (“BDC”, “ADC” and “SADC” respectively). Notification No. 102/2007 dated 14.9.2007 (“original notification”) exempted goods in the First Schedule of the Customs Tariff Act, 1975 (“CTA”) from the whole of the SADC leviable under Section 3(5) of Customs Act when imported into India for subsequent sale on the fulfillment of certain conditions.

3. The appellant imported some items in between 1.12.2007 and 5.12.2007 under 9 Bills of Entry, paid the applicable customs duties by demand drafts dated. 4.12.2007 and 6.12.2007 and received stamped TR-6 challans on 14.12.2007, 18.12.2007 and 19.12.2007. Notification 93/2008-Cus dated 1.08.2008 (“amending notification”) was then issued amending Notification no. 102/2007 to prescribe a time period of 1 year from date of payment for the filing of refund claims by an importer under the Notification. On 11.12.2008, the appellant filed a refund claim amounting to Rs.66,67,480/- before the Assistant Commissioner of Customs (“the respondent”) for the refund of SADC on the imports in December 2007 under the Notification no. 102/2007. After hearing the appellant, the respondent passed an order dated 12.10.2009 allowing the claim of Rs. 33,49,015/-, on the ground that the refund in respect of 4 Bills of Entry had been filed beyond the period of 1 year stipulated in the amending notification. The order, in relevant part, reads:

“… that the verification of the TR-6 Challans against the bill of entry dated 1.12.2007 and 5.12.2007 reflect that the refund claims against the above bills of entry are time barred as the date mentioned in the TR-6 Challan was wrongly taken as the date of payment of duty by the appellant. The claim filed by the appellant was not within one year from the date of payment of duty as per Circular 6/2008 and accordingly the refund amount claimed under the said bills of entry was held to be liable to be rejected.”

4. On appeal against this order before the Commissioner of Customs (Appeals) (“CC(A)”), the appellant sought to argue first, that there was no time limit in the original notification, second, the period of one year should be computed from the date in the TR-6 challan, and that the time limit of 1 year as applied by the respondent was bad in law, third, that the Board Circular no. 6/2008-Cus dated 28.04.2008 clarifies that the time period of 6 months as under Section 27 of the Customs Act does not automatically apply to the SADC refund applications under the original notification. The CC(A) rejected the appeal on the ground that the dates of payment of duty provided by the appellant in respect of 4 bills of entry were incorrect. The CESTAT upheld the findings of the CC(A) in the appeal on the ground that the refund claims were time-barred having been filed beyond a period of 1 year from date of payment, mandated in the amending notification no. 93/2008-Cus.

5. The appellant submits first, that the respondent’s order was passed on the basis of th