IMPORTANT POINT
The limitation period for refund claims under the Customs Act is determined from the date of final assessment, not the date of provisional duty payment.

ORDER :

Bhargav D. Karia, J.

1. Heard learned advocate Mr.Utkarsh R. Sharma for the appellant.

2. By this Appeal under Section 130 of the Customs Act, 1962 (for short ‘the Act’) the appellant-revenue has proposed the following substantial questions of law arising out of the impugned order passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (CESTAT) vide order dated 23rd June, 2023 passed in Customs Appeal No.10506 of 2014:

“(i) Whether the time limit of one year from the date of payment of duty prescribed under Notification No. 102/2007-Custom dated 14.09.2007 read with Noti. No. 93/2008-Customs dated 01.08.2008 for the refund claim filed in terms of the said notification, can be considered from the date of finalisation of provisional assessment (in cases where the assessment is provisional) or otherwise?

(ii) Whether in the facts and circumstances of the case, the Ld. Tribunal was correct in the eyes of Law and on facts by holding that "the refund filed in the instant case is well within the time as prescribed under Notification No. 102/2007-Cus and refund is not time-barred.”

3. 1. The respondent filed an application before the Assistant Commissioner, Customs Division, Bhavnagar for refund of an amount of Rs.2,46,902/- under Notification No.102/2007- Customs dated 14.09.2007 towards Special Additional Customs Duty (SAD) paid in respect of Bill of Entry No.SBY/89/2012-13 dated 21.06.2012.

3.2. The Assistant Commissioner, Customs Division, Bhavnagar vide Order-in-Original dated 11th September, 2013 rejected the refund claim holding that the refund claim is time barred since it has not been filed within one year from the date of payment of duty.

3.3. Feeling aggrieved, the respondent filed an appeal before Commissioner (Appeals), Customs, Jamnagar who by Order-in-Appeal dated 26.12.2013 upheld the Order-in-Original rejecting the refund claim of the respondent.

3.4. Therefore, the respondent filed appeal before the CESTAT challenging both, the Order- in-Original and order-in-Appeal. The CESTAT by impugned order dated 23rd June, 2023 allowed the appeal filed by the respondent by observing as under :

“4. Considered, this Court finds that the Board Circular as well as the Delhi High Court decision as reported in Pioneer India Electronics Pvt Ltd Vs. Union of India-2014 (301) ELT 59 (Delhi High Court) was duly considered by the Division Bench of Delhi this Tribunal in SUZUKI MOTORCYCLE INDIA P. LTD VS C.C. (IMPORT & GENERAL), NEW DELHI, cited Supra and it was decided in that matter in the similar circumstances, that refund cannot be rejected as time barred and Bench allowed the appeal by remanding the same to adjudicating authority for deciding refund claim if otherwise admissible. This Court is inclined to follow the same decision and particularly emphasizes, there is no ambiguity as such in the notification as the statutory provision as that contained in Section 27(1B)(C) is very clear as to what is the date of payment to be reckoned when provisional assessment has been resorted to. The relevant notification has no clause providing otherwise, therefore, the same needs to be interpreted harmoniously with the statutory provision and it appears that the Board Circular was correctly ignored in the decision of SUZUKI MOTORCYCLE INDIA P. LTD, under the similar circumstances.”

4.1. Learned advocate Mr.Utkarsh Sharma appearing for the appellant submitted that the Tribunal has committed an error by not applying the Notification No.102/2007 read with Notification No.93/2008 which provides for one year time period for filing the refund application for SAD paid on the imported goods with the jurisdictional Customs Officer within one year from the date of payment of such duty. It was submitted that the Tribunal ought to have applied the conditions prescribed in the Notification No.93/2008 by which the Notification No.102/2007 was amended and the applicability of Explanation II appended to Section 27 of the Act ca