Rachna Gupta ORDER
Rachna Gupta, Member (J)
1. Present is an Appeal against the Order of Commissioner of Customs (Appeals) bearing No. 179/17 dated 24.04.2018 as filed by the Department.
2. Facts relevant for the purpose are that the assessee, M/s. Aggarwal Trading Company herein had filed a refund claim under special refund mechanism as provided for under the exemption Notification No. 102/2007-Cus : MANU/CUST/0175/2007 dated 14.09.2007 (herein referred to as the said Notification) for an amount of Rs. 38,057/-. The claim is with respect to special additional duty of Customs (SAD) leviable under sub-section 5 of Section 3 of Custom Tariff Act, 1975 (herein after referred to as the Act) the details of refund are as follows:
The Assistant Commissioner vide order No. 5230 dated 08.09.2016 has rejected the said claim on the ground that the same has been filed after the prescribed time limit of one year from the date of payment and as such is rejected as being barred by time. Being aggrieved, the assessee approached the first appellate authority, i.e. the Commissioner of Customs (Appeals). He, vide the Order under challenge has held that upholding the limitation period starting from the date of payment of duty as prescribed in amended Notification No. 93/2008-Cus : MANU/CUST/0156/2008 would amount to allowing commencement of limitation period for refund claimed before the right of refund has even accrued and that no period of limitation is prescribed under Section 3(5) of the Customs Tariff Act. Accordingly, the Appeal of assessee was allowed accepting the refund claimed. Department being aggrieved is in Appeal before us.
3. We have heard Shri Rakesh Kumar, Ld. DR for the Department/appellant. However none is present for the respondent. He therefore hereby proceed to decide the Appeal ex-parte considering defendant.
4. It is submitted that the Commissioner(Appeals) has based his Order on the decision of Hon'ble High Court of Delhi in the matter of M/s. Sony India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi MANU/DE/0922/2014 : 2014 (304) ELT 660 (Del.) and though the Appeal whereof even before Hon'ble Supreme Court has been dismissed but Hon'ble Apex Court has dismissed the Appeal only on the ground of limitation hence the question of law involved herein is still kept open. It is impressed upon that Notification No. 93/2008-Cus : MANU/CUST/0156/2008 dated 01.08.2008 is the Notification amending the Notification No. 102/2007 : MANU/CUST/0175/2007 vide which a time period of one year from the date of payment for the filing of refund claims by an importer has been introduced. Thus, the period for filing the impugned refund claim is clearly of one year. Since the refund claim in question was not filed within the said one year, the original Adjudicating Authority had rightly dismissed the same and the Commissioner(Appeals) has committed an error ........