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TMI Blog2013 (4) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... aims which have been rejected by the lower authority under different orders but since the issue involved is common and all the claims have been rejected on the same ground, all the appeals are taken together and a common order is being passed. 3. Heard both sides and considered the submissions made and also perused records of the case. 4. The first ground on the basis of which the appeals have been rejected is that the appellant had undertaken further working/processing on the imported goods before the goods are sold. According to the Revenue, the imported goods have completely lost their identity and co-relation between the goods imported and the goods sold cannot be established thereby rendering appellant ineligible for exemption by way of refund. It is admitted that the appellants have undertaken cutting and slitting of the coils imported by them before they are sold. Further, the original adjudicating authority also recorded the finding that the goods imported by the appellant were classified under CTSH No. 72091790 and 72259900 whereas the goods were sold under CTSH No. 72112940, 72083990, 72111940, 72092620, 72262021, 72092820, 72111990 and 72092720 etc. This information ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner has taken a view that even if the process amounting to manufacture has not taken place, as per the Notification the same goods which are imported should be sold subsequently and therefore once the goods have undergone further process, the appellant is not eligible for refund. This takes us to examination of two requirements namely whether the goods should be sold without any further process to become eligible for refund and the question as to whether the process undertaken amounts to manufacture is relevant or not. 8. The ld. Advocate relied upon the decision of Tribunal in the case of M/s. Agarwalla Timbers Pvt. Ltd. & Ors. Vs. CC, Kandla - No A/1575, 1612/WZB/AHD/2010 dated 27.9.2010. He also relied upon the decision in the case of M/s. Rajpurohit GMP India Ltd. Vs. CCE, Mumbai - 2008 (231) ELT 577 (SC), the Commissioner of C. Ex. Mumbai Vs. M/s. BEMCEE Ltd. - 2003 (151) ELT545 (T) to submit that mere cutting and slitting of imported coil does not amount to manufacture. In fact, in the case of M/s. BEMCEE Ltd. it was observed by the Tribunal as under: "We have seen the tariff item. The description of the product as flat rolled products continues throughout the tariff ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory meaning of timber. In this connection they referred to the Shorter Oxford Dictionary (third edition), 'timber' are building material generally; wood used for the building of houses, ships, etc., or for the use of the carpenter, joinder or other artisan. 40. In Concise Oxford Dictionary (6th edition), "Timber" means, "wood prepared for building, carpentry, etc., trees suitable for this ; woods, forests, piece of wood, beam", ...... "unhewn piece of felled trees, or similar rough mass of wood especially cut for firewood". 41. In Webster's Third New International Dictionary, "timber" is described as "wood used for or suitable for building (as a house or boat) or for carpentry or joindry". 42. In Webster's Collegiate Dictionary, "standing timber" means wood suitable for building houses, bridges, ships, etc. 43. The Supreme Court, therefore, held that having regard to the fact that sales of dressed or sized logs by the respondent-firm which had already been assessed to sales tax, the sales to the respondent-firm. by the State Government cannot be subjected to tax under the Orissa Sales Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstood for the purpose of taxing it even after it was cut into sizes, was the subject-matter of the appeal before the Supreme Court. After elaborately dealing with the question, the Supreme Court held that timber includes, sized timber; planks, rafters, etc., and that even in commercial parlance they mean the same thing. It was also the view emphatically expressed by the Supreme Court." After considering various aspects and meanings, Hon'be High Court came to a conclusion that timber even after it is cut into smaller sizes for doors etc. continues to be timber and is not a different commodity commercially. In the case of Titaghur Paper Mills, in spite of the fact that sawn timber and timber were under two different sections of sales tax, the Hon'ble Supreme Court held that no sales-tax can be levied on the same goods again. 10. In the case of M/s. Vijrom Chemicals Pvt. Ltd, the Tribunal took the view that re-packing of the chemicals would not result in denial of exemption under Notification No. 34/98. The difference between Notification No. 34/98 and present Notification is that under the earlier Notification, the importer did not have to pay tax and claim refund whereas under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the purchaser is concerned, in the case of re-packing of chemicals, the nature of packing changed and not the goods under process. In such a case Tribunal held that the exemption was available. The exemption was held available even if the form of goods changed when it was implemented as an exemption and the requirement of the claimant of exemption to satisfy that the same goods have been sold was in existent at the time also. 13. In fact, in the case of M/s. Agarwala Timber Pvt. Ltd, it had been argued by the ld. Counsel on behalf of the appellants that the Notification No.34/98 had used the word "as such" whereas in the present Notification those words do not appear and therefore there was no requirement of selling the goods "as such". The ld. A.R. submits that the decision and the submission made therein and accepted by the Tribunal do not appear to be correct. In his view even though the word "as such" are not available in the present Notification, the present Notification uses the term "the said goods". According to the Black Law Dictionary - "The word 'said' is used by many practitioners rather than 'the' to refer back to previously recited elements, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported by him. 15. Under these circumstances and in view of the decisions discussed above, we reach the conclusion that the appellant is eligible for refund. However, the matter is required to be remanded to the original adjudicating authority since there was no indication anywhere that the appellant fulfilled the obligation to show that the goods sold by him were the imported goods. This has Happened Since the lower authority has taken the view that the processing undertaken by the appellant has changed the nature of goods and therefore appellant is not eligible for the exemption on that ground alone. Therefore it becomes necessary to give another opportunity to verify this aspect and request the appellant to provide evidence to show that they have sold the goods imported by them only. 16. We did not consider or discuss as to the intention behind the extension of exemption deliberately since it is not appropriate to go into the intention behind the Notification while extending the benefit since the Notification has to be interpreted on the basis of the words used therein not taking into account the intention. The intention has to be examined in the light of the words used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. These would be examined and if considered appropriate notified separately." 17. On the basis of observations made, the Notification No. 34/98 exempts goods imported for subsequent sale. Observations of the Finance Minister relating to Notification No. 102/2007 are as under: "However, I intend to take the power to impose a countervailing duty (CVD) of 4 per cent on all imports to compensate for the State level taxes, in particular the forthcoming State level VAT that is proposed to be imposed on corresponding domestic goods. For the present, I propose to levy a CVD of 4 per cent only on the imports of ITA bound items and their imports that attract nil duty. Credit for the CVD will be available against payment of excise duty. However, because we have a soft corner for these wares, IT software will be exempt from the proposed CVD." 18. It may be seen that in both cases, when the importer imports goods, for further manufacture they would get modvat credit or cenvat credit of SAD paid by them. In the case of an importer who imports the goods for selling, the SAD was exempted under Notification No.34/98 and under Notification No. 102/2007 they are eligible for re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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