9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (7) TMI 697 - AT - CustomsRefund claim of Special Additional Duty (SAD) paid on the imported goods - rejection on the ground that Chartered Accountant certificate does not specify how he has arrived at the conclusion that the MRP/RSP does not include SAD - HELD THAT - It is an admitted fact that at the time of import by the Appellant, there were two prevailing Notifications. The N/N. 102/2007 was covering all the goods imported for trading purposes, whereas N/N. 29/2010 was available for pre-packaged goods intended for resale and other specified goods in the Notification. There was no restriction on the importers to avail the benefit of either Notifications. Moreover, the issue is squarely covered by the decision of the Tribunal in the matter of M/s Suburban Engineering Works (Cal.) Pvt. Ltd. 1990 (12) TMI 245 - CEGAT, CALCUTTA , where it is held that ' In this case, the refund is not claimed under Section 27 of the Customs Act. The appellant is not requesting for change of the assessment made at the time of importation. For grant of refund of SAD as per notification 102/07-Cus. re-assessment of Bills of Entries are not prescribed under the notification.' Regarding reliance on the letter F. No. 334/1/2010-TRU dated 26.02.2010, it is explaining the scope of N/N. 29/2010, wherein outright exemption from SAD was provided to goods imported in pre-packaged form and intended for retail sale. In the absence of any specific provision superseding the N/N. 102/2007 dated 14.09.2007 in Notification No. 29/2010, when it was introduced, it is open for the Appellant to opt for either of them and in the case the appellant has opted for N/N. 102/2007 and paid SAD at the time of import, which cannot be considered as admission of the liability to pay SAD. The appellant is eligible for refund of SAD under N/N. 102/2007 dated 14.09.2007 - the impugned order is set aside - appeal allowed.
Issues Involved:
1. Rejection of refund claim of Special Additional Duty (SAD) paid on imported goods. 2. Applicability of Notification No. 102/2007 versus Notification No. 29/2010. 3. Validity of Chartered Accountant certificate in refund claims. 4. Requirement to challenge original assessment for refund under Notification No. 102/2007. Issue-wise Detailed Analysis: 1. Rejection of Refund Claim of Special Additional Duty (SAD) Paid on Imported Goods: The Appellant imported goods for trading/sale and paid sales tax/VAT as per statutory provisions. They claimed a refund under Notification No. 102/2007 dated 14.09.2007. However, the Adjudication authority rejected the refund claims on 09.01.2013 and 16.01.2013, and the Commissioner (Appeals) upheld these rejections. The Tribunal found that the Appellant was eligible for a refund of SAD under Notification No. 102/2007, as there was no restriction on availing either notification. 2. Applicability of Notification No. 102/2007 Versus Notification No. 29/2010: The Commissioner (Appeals) held that Notification No. 29/2010-Cus. dated 27.02.2010, superseded by Notification 21/2012-Cus. dated 17.03.2012, applied to pre-packaged goods intended for retail sale. The Appellant argued that Notification No. 102/2007 was not withdrawn or superseded by Notification No. 29/2010, allowing the importer to choose either. The Tribunal agreed, noting that both notifications provided for SAD exemption, and the Appellant's choice was valid. The Tribunal referenced Suburban Engineering Works (Cal.) Pvt., Ltd.-1991 (56) E.L.T. 470 (Tribunal) to support this. 3. Validity of Chartered Accountant Certificate in Refund Claims: The rejection of the refund claim was also based on the Chartered Accountant certificate not specifying the exclusion of SAD in the MRP/RSP. The Appellant argued that as per Public Notice No. 5/2011 dated 21.01.2011, the certificate format was sufficient and should not be questioned. They also provided balance sheets showing SAD as receivables. The Tribunal accepted this evidence, referencing decisions in M/s Krishan Enterprises Vs. CC (Import), Mumbai - 2009 (237) E.L.T. 708 (Tri.-Mumbai) and M/s Salve Pharmaceuticals Pvt. Ltd. Vs. Commissioner of C.Ex., Delhi. 4. Requirement to Challenge Original Assessment for Refund Under Notification No. 102/2007: The Revenue argued that without challenging the original assessment, no refund could be claimed, citing Priya Blue Industries Ltd. v. Commissioner of Customs - 2004 (172) E.L.T. 145 (S.C.). The Appellant contended that they were not seeking a change in assessment but a refund under Notification No. 102/2007. The Tribunal noted that reassessment was not required under this notification and referenced Aman Medicals Products Ltd. v. CC-2010 (250) E.L.T. 30 (Del.), which allowed refund claims without challenging the original assessment. The Tribunal found the Revenue's reliance on ITC Ltd. Vs. CCE, Kolkata-IV - 2019 (368) E.L.T. 216 (S.C) misplaced, as it did not apply to the Appellant's situation. Conclusion: The Tribunal concluded that the Appellant was eligible for a refund of SAD under Notification No. 102/2007, setting aside the impugned order and allowing the appeal with consequential relief as per law. The judgment emphasized that the Appellant's choice of notification was valid and that the evidence provided was sufficient to support the refund claim. Order Pronounced: The order was pronounced in open court on 11.07.2024.
|
