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2021 (3) TMI 726 - AT - CustomsRefund of SAD - sales during pre-GST period - Sale of goods at NIL / Exempted rate of VAT - Notification No.34/1998-Cus has been rescinded vide Notification No.58/1998-Cus dt. 01/08/1998 - HELD THAT - the Assistant Commissioner while rejecting the refund claim of ₹ 76,706/- has relied upon the decision of the Supreme Court in the case of CC, Mumbai Vs. Seiko Brushware India but the said decision is in respect of Notification No.34/1998-Cus. dt. 13/06/1998 wherein the proviso disallows exemption from SAD if the goods are sold from a place where there is no sales tax on the goods. But in the present case, the appellant has claimed the refund of SAD on the basis of Notification No.102/2007-Cus dt. 14/09/2007 which only specifies that appropriate sales tax should be paid . This issue is no more res integra and has been settled by various decisions of the Tribunal including the decision of this Tribunal in the appellant s own case VALLABHDAS AND CO. BALAKRISHNA SALES CORPORATION VERSUS COMMISSIONER OF CUSTOMS COCHIN 2017 (5) TMI 1371 - CESTAT BANGALORE wherein the Tribunal has allowed all the appeals by relying upon the earlier decisions of the Tribunal. Besides this, I find that both the authorities have wrongly relied upon the decision of the Apex Court which was in respect of Notification No. 34/1998-Cus. dated 13.06.1998. Further I find that the said Notification 34/1998 has been subsequently rescinded by Notification 58/1998-Cus. dated 01.08.1998. Therefore, reliance by both the parties on a Notification which has been rescinded is not tenable in law. Appeal allowed - decided in favor of appellant.
Issues:
Refund claim of Special Additional Duty (SAD) under Notification No.102/2007-Cus dt. 14/09/2007 - Appellant's appeal against rejection by Commissioner of Customs (Appeals) - Interpretation of relevant notifications and applicability of sales tax conditions. Analysis: The appeal pertains to the rejection of a refund claim of SAD paid on imported Rock Phosphate from Egypt under Notification No.102/2007-Cus. The appellant imported goods in February and June 2017, cleared them, and later filed a refund claim of &8377; 1,57,679/- for SAD paid. The original authority rejected part of the claim for sales during the pre-GST period but sanctioned a refund for sales post-GST period. The appellant contended that the impugned order failed to appreciate the law and facts. The Assistant Commissioner cited a Supreme Court decision regarding Notification No.34/1998-Cus, but the appellant's claim was under Notification No.102/2007-Cus, which required the payment of "appropriate sales tax." The appellant argued that the issue was settled in their favor in previous cases and that reliance on rescinded notifications was incorrect. The Tribunal analyzed the matter and found that the issue was settled in the appellant's favor in previous decisions, including those in the appellant's own case. The Tribunal noted that reliance on a rescinded notification like 34/1998-Cus was not tenable in law. Citing a previous decision, the Tribunal clarified that under Notification No.102/2007, even if the VAT/sales tax was less than 4%, the appellant was entitled to a refund of SAD as long as some tax was paid. The Tribunal held that a NIL rate of VAT under the Kerala Finance Act 2001 could be considered as appropriate sales tax/VAT, satisfying the conditions of Notification No.102/2007. Consequently, the impugned orders were set aside, and all appeals were allowed with consequential relief. The Tribunal pronounced the order in favor of the appellant, following the precedent set in previous decisions. In conclusion, the Tribunal allowed the appellant's appeal, setting aside the impugned order and granting relief based on the interpretation of relevant notifications and the payment of appropriate sales tax conditions under Notification No.102/2007-Cus. The decision reaffirmed the appellant's entitlement to a refund of SAD paid, emphasizing the settled nature of the issue in favor of the appellant as established in previous tribunal decisions.
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