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2018 (8) TMI 634 - AT - CustomsSAD Refund - whether the appellant is entitled for refund of SAD paid by availing exemption notification 102/2007-CUS dated 14.09.2009 in the case where the SAD was debited in the DPEB pass book not paid in cash? Held that - The appellant is entitled for a cash refund under N/N. 102/2007- Cus even though the said amount was paid by the debiting DEPB scrip - Hon ble Delhi High Court dealt with the very identical issue in the case of Allen Diesels India Pvt. Ltd. 2016 (2) TMI 247 - DELHI HIGH COURT which held that under N/N. 102/2007- Cus. even if the special edition duty was debited in the DEPB scrip, the refund should be granted in cash. Appeal allowed - decided in favor of appellant.
Issues:
1. Entitlement for refund of SAD paid by availing exemption notification 102/2007-CUS when debited in the DEPB pass book. Analysis: The primary issue in this case was whether the appellant is entitled to a refund of Special Additional Duty (SAD) paid by utilizing exemption notification 102/2007-CUS, despite the duty being debited in the Duty Entitlement Pass Book (DEPB) pass book instead of being paid in cash. The appellant contended that they should receive a cash refund based on the judgment of the Delhi High Court in the case of Allen Diesels India Pvt. Ltd., which was subsequently followed by the Tribunal in another case. The appellant argued that the Delhi High Court's decision established that even if the duty was debited in the DEPB scrip, the refund should be granted in cash under the said notification. On the other hand, the Revenue's representative relied on the findings of the impugned order and pointed out that under the DEPB scheme, duties are exempted. Therefore, according to the Revenue, if duties were debited in the DEPB passbook, the appellant should not be entitled to a cash refund. The Revenue's position was supported by a previous judgment of the Tribunal in the case of Milton Laminates Ltd. v/s Commissioner of Customs, Kandla. After considering the arguments from both sides and examining the records, the Member (Judicial) observed that the Delhi High Court's decision in the Allen Diesels India Pvt. Ltd. case established a clear legal position. The High Court held that even if the duty was debited in the DEPB scrip, the refund should be granted in cash under notification 102/2007-CUS. The Member noted that the Tribunal had also followed this judgment and concluded that the appellant was indeed entitled to a cash refund despite the duty being paid through the DEPB scrip. Consequently, the Member held that the appellant should receive a cash refund based on the settled legal position established by the Delhi High Court's judgment. Regarding the judgment cited by the Revenue's representative from a single Member bench of the Tribunal and the argument about duty exemption under notification 34/97-Cus, the Member distinguished these points. The Member emphasized that the Delhi High Court's decision clearly stated that even if duties were exempted through the DEPB scrip, a cash refund should still be granted under notification 102/2007-CUS. Therefore, the impugned order was set aside, and the appeal was allowed in favor of the appellant.
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