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2018 (9) TMI 95 - AT - CustomsRefund of SAD - N/N. 102/2007-Customs dt.14.9.2007 as amended by N/N. 93/2008 dt.1.8.2008 - rejection on the ground that the claim was beyond the time limit of one year from the date of payment of duty - Held that - In terms of Notification No.102/2007 an importer is entitled for refund of SAD that was levied at the time of import after he files necessary documents to prove that proper Sales Tax or VAT as the case may be has been paid. As settled by various higher judicial forums the purpose of imposing SAD is to protect and ensure collection of appropriate sales tax or VAT that is payable on imported goods which is paid upfront at the time of imports. SAD is not credited and set off from the sales tax or VAT which is refundable to an importer after ascertaining the appellant to appropriate Sales Tax / VAT. The appellant is eligible for refund despite the fact that its claim of refund was belated (by 10 days) - appeal allowed - decided in favor of appellant.
Issues:
Challenge to rejection of refund claim due to time limit for filing. Analysis: The appellant challenged the rejection of a refund claim amounting to ?60,587 for imported goods sold to customers. The claim was rejected by the adjudicating authority citing it was beyond the one-year time limit from the date of duty payment. The appellant appealed to the forum after failing before the first appellate authority. During the hearing, the appellant's advocate argued that there was only a 10-day delay in filing the refund claim, citing relevant legal precedents. The departmental representative supported the lower authorities' findings, mentioning contrary decisions on the issue from different forums. The Member (Judicial) analyzed the contentions and referred to Notification No.102/2007, stating an importer is entitled to a refund of Special Additional Duty (SAD) if proper Sales Tax or VAT has been paid. The purpose of SAD is to ensure the collection of appropriate sales tax or VAT payable on imported goods. The Member referred to various judicial decisions, emphasizing the purpose of SAD and the requirement to prove payment of appropriate sales tax or VAT for claiming a refund. Referring to the decision of the Hon'ble Delhi High Court in Gulati Sales Corporation, the Member concluded that there was no conflict between different views on the issue. The Member highlighted that SAD is refundable after verifying the payment of appropriate sales tax or VAT, ensuring no double duty/tax is paid. The Member also noted a Circular stating that Section 27 of the Act is not applicable to Notification No.102/2007. Based on the above analysis and following the precedent set by the decision in Sony India Pvt. Ltd., the Member held that the appellant was eligible for a refund despite the slight delay in filing the claim. The impugned order was set aside, and the appellant's claim for a refund was allowed, along with any consequential benefits. Additionally, the Member mentioned a similar decision by the New Delhi Bench of CESTAT in the case of M/s.River Tradex, which dismissed the Revenue's appeal following the decision in Sony India Pvt. Ltd. In conclusion, the appeal was allowed, and the appellant's claim for a refund was accepted, with the judgment pronounced in open court on 31.8.2018.
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