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TMI Blog2013 (8) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... oods is from SEZ and it cannot be construed as import of goods – order set aside – deicided in favour of assessee. - C/226-229/11 - A/10557 TO 10560/WZB/AHD/2012 - Dated:- 22-4-2013 - M V Ravindran And H K Thakur, JJ. For the Appellant: Shri V K Jain, Adv. For the Respondent: Shri K Shivkumar, AR. Per: M V Ravindran: 1. All these appeals raise a common question, hence are disposed by a common order. The details of appeals are us under: Sr. No. Appeal No. Name of the Appellant Order-in-Appeal No. Refund Amount involved 1. C/227/2011 Link Enterprise 188-191/2011/CUS/COMMR(A)/KDL dated 11/05/2011. 12,34,463/- 2. C/228/2011 Link Enterprise 188-191/2011/CUS/COMMR(A)/KDL dated 11/05/2011. 5,03,078/- 3. C/229/2011 Link Enterprise 188-191/2011/CUS/COMMR(A)/KDL dated 11/05/2011. 5,59,312/- 4. C/226/11. Adinath Tradelink 188-191/2011/CUS/COMMR(A)/KDL dt.11/05/2011. 4,79,500/- 2. The relevant facts arise for consideration are that the appellants herein filed various bills of ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mestic area. He would submit that the Apex Court in the case of Industrial Suppliers Pvt. Ltd. vs. Union of India [MANU/SC/0094/1980] had specifically settled as to hold, that if an legal fiction is created, then the Court has to ascertain for what purpose the fiction is created. He would rely upon the decision of the Tribunal in the case of Auro Textile [2010 (253) ELT 35 (Tri.-Del.)] for the proposition that the words in statute are to be understood in their natural, ordinary and popular sense and phrase and sentences are to be construed according to their grammatical meaning, unless it leads to some absurdity. It is his submission that the appeals need to be allowed and the impugned orders be set-aside. 5. On the other hand, ld. Additional Commissioner (AR) would lay on the definition of "import" under Customs Act, 1962. He would submit reading of definition of "import and imported goods" as enshrined in Customs Act, 1962 would mean that goods have to be brought from outside to India. It is his submission that SEZ is not a place of outside India for the purpose of construing the meaning of the word import. It is his submission that the appellants cannot be allowed to claim ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that arises for our consideration in this case is whether discharge of SAD by the appellant herein is refundable to them or not. Provision of Section 30 of the SEZ Act reads as under : "30. Domestic clearance by Units :- Subject to the conditions specified in the rules made by the Central Government in this behalf - (a) any goods removed from a Special Economic Zone to the Domestic Tariff Area shall be chargeable to duties of customs including anti-dumping, countervailing and safeguard duties under the Customs Tariff. Act, 1975 (51 of 1975), where applicable, as leviable on such goods when imported; and (b) the rate of duty and tariff valuation, if any, applicable to goods removed from a Special Economic Zone shall be at the rate and tariff valuation in force as on the date of such removal, and where such date is not ascertainable, on the date of payment of duty. (emphasize supplied). 11. It can be seen from the above reproduced Section that any goods which are removed from SEZ to DTA, customs duties shall be chargeable, wherever applicable, as leviable on such goods when imported. In short, there is a legal fiction which has been created for discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported goods in respect of which refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 3. The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para.2 above, are fulfilled. (emphasize supplied). 12. It can be seen from the above reproduced notification that the said notification provides for exemption to be granted to the goods which are leviable to SAD at the time of importation of goods into India for subsequent sale. It can be seen that the said notification specifically grants exemption by way of refund, on fulfillment of conditions of SAD which are paid on the goods when imported into India. In our considered view, the words "at the time of importation of goods" as indicated in Notification has to be read holistically with the provisions of Section 30 of SEZ Act, which also talks about applicability and leviability of such SAD when goods imported. It would mean that when the goods move from SEZ to DTA, the leviability of SAD is on the goods ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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