2011 (12) TMI 402 - AT - Customs

Application for stay - Special additional duty - Right to use - Notification No. 102/07-Cus dated 14.09.2007 - In this case the respondent after import of the Set Top Boxes, supplied those Set Top Boxes to consumers on right to use basis and in respect of such supply, the VAT was paid by them by treating the same as sale - Held that there is no dispute that the Set Top Boxes have been imported by the respondent for supply to their consumers on right to use basis for which some amount is charged by the respondent and on that amount VAT has been paid in terms of provision of the VAT Acts of the State Governments - the word sale has not been defined in this notification, it is clear that the word sale must be understood in the sense in which it has been defined in sales tax /VAT Acts of various State Governments or Central Tax Act, 1956 and in their Acts, the word sale also includes transfer of right to use any goods for any purpose (whether or not for a specified period) for cash or deferred payment or other valuable consideration there is no order for remand and what the Commissioner (Appeals) has done is that he has allowed the appeals subject to verification of the original documents for the purpose of refuned wherever necessary in terms of the Notification No. 102/2007-Cus. and this direction cannot be treated as remanding the matter to the original adjudicating authority for denovo adjudication - Decided in favor of the assessee

Summary

Issues:
1. Interpretation of exemption Notification No. 102/07-Cus regarding refund of Special Additional Duty (SAD) on imported goods.
2. Determining the definition of 'sale' for the purpose of claiming refund under the notification.
3. Whether supplying Set Top Boxes on a right to use basis constitutes a sale under the exemption notification.
4. Validity of the Commissioner (Appeals) order allowing refunds based on the definition of 'sale' in VAT Acts.

Detailed Analysis:
1. The case involved a dispute over the interpretation of Exemption Notification No. 102/07-Cus regarding the refund of Special Additional Duty (SAD) on imported goods. The notification required the importer to pay all duties, including SAD, at the time of importation, pay appropriate sales tax or VAT on sale of goods, and file a claim for refund with the customs officer. The main condition for refund was that the goods must have been imported for sale, and appropriate tax must have been paid on the sale.

2. The issue of determining the definition of 'sale' for the purpose of claiming a refund under the notification was crucial. The notification did not define 'sale,' leading to the question of whether the term should be understood based on the definitions in the VAT Acts of State Governments or the Central Sales Tax Act, 1956. The definition of 'sale' in these Acts includes the transfer of the right to use goods for consideration, whether cash, deferred payment, or other valuable consideration.

3. A significant aspect of the case was whether supplying Set Top Boxes on a right to use basis constituted a sale under the exemption notification. The respondent had imported the boxes and supplied them to consumers on a right to use basis, paying VAT as per VAT Acts. The revenue contended that since the ownership of the boxes remained with the respondent, it could not be considered a sale. However, the Tribunal found that the transactions met the conditions of the notification for refund of SAD, as VAT had been paid on the sales.

4. The validity of the Commissioner (Appeals) order allowing refunds based on the definition of 'sale' in VAT Acts was challenged. The Commissioner had set aside the Deputy Commissioner's rejection of refund claims, emphasizing that the definition of 'sale' in VAT Acts determined the charge of VAT/CST upon sale. The Tribunal upheld the Commissioner's decision, stating that the respondent's transactions with customers on a right to use basis qualified as sales under the notification, and there was no basis for the revenue's contention that these were not sales.

In conclusion, the Tribunal dismissed the appeal and stay applications of the revenue, upholding the Commissioner (Appeals) order allowing refunds based on the understanding of 'sale' in the context of the exemption notification and VAT Acts.