9911796707
TMI Blog2013 (11) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... 23-09-2013. 2. Special Additional Duty of Customs (SAD) is levied under section 3(5) of Customs Tariff Act, 1985 by issuing notification 19/2006-Cus dated 01-03-2006. This duty is levied, at the time of importation of goods, in lieu of Sales Tax/VAT levied by the states. There is a scheme under which the importer can claim refund of SAD paid if it is proved that after importation the goods are sold on payment of VAT as applicable. This scheme is operated through exemption notification 102/2007-Cus and the impugned refund claims are filed as per provisions of this notification. 3. The adjudicating authority partially sanctioned refund claims and partially denied the claims in all the above four orders for various reasons briefly indicated in the following Table:- S. No. Appeal No. O-in-O No. Date Rejected amount in Rupees Remarks 1. C3/487/R/2012 149/2012 10.4.2012 10,96,148/- (59 B/Es 1. Without challenging the order of assessment 2. C3/503/R/2012 205/2012 26.4.2012 7,10,422/- (72,823/- against 8 B/Es 6,97,500/ - (27 B/Es) 1. Discrepancy between the bills of entry and the sales invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication orders the appellant filed appeals with Commissioner Appeal who passed order as under:- 6. Reference to the above notification is warranted only where the assessment has been carried out extending the said notification. In the instant case, as clearly claimed by the appellant, the assessment was carried out based on the notification 19/2006-Cus. dated 1.3.2006 by which the SAD @ 4% was charged. I also observed from the impugned order that the LAA nowhere concluded that the bills of entry pertaining to the import of pre-packaged commodities were assessed by extending the exemption under Notification No. 29/2010. While it is so, where is the necessity to bring in that notification which was not at all relevant to deny the refund. Also, I find the LAA except for the above unwarranted observation has not stated that the refund claims were in nor order in respect of the conditions of compliance as per notification No. 102/2007-Cus. dated 14.9.2007. If the appellant had not claimed the exemption under Notification No.29/2010, there is nothing in the law to prevent him from claiming the benefit of equally eligible notification viz. 102/2007 and the department ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Priya Blue Industries Ltd. Vs. Commissioner of Customs- 2004 (172) ELT 145 (SC). Therefore, the Revenue is praying that the Order-in-Appeal may be set aside. 7. Arguing for the respondent, the learned Advocate submits that the importer is not asking for changing the assessment made at the time of import. They are only asking for refund of the duty paid at the time of import in terms of the provisions under Notification No. 102/2007-Cus. The refund under this notification is on a different footing as compared to other refunds section 27 of Customs Act. She points out that in the case of any goods for which SAD is payable and for which Notification No. 29/2010-Cus is not applicable, the importer has to pay SAD as applicable at the time of importation and thereafter claim refund of SAD as per the provisions of Notification No. 102/2007-Cus after satisfying the main condition of selling the goods on payment of applicable VAT and satisfying various other conditions in the notification. The said Notification by its very nature cannot claimed at the time of importation of the goods. It is claimed normally almost one year after the period of importation after selling the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter is seeking change in assessment made at the time of importation of goods. Only in such a situation, the decision of the Apex Court in Priya Blue Industries (supra) would apply. Even in such cases, the Hon'ble Delhi High Court has clarified that the said decision would apply only in a case where there was a dispute between the Department and the importer at the time of importation of the goods and the matter was adjudicated either through assessment of BE or through further proceedings. Where there was no lis at the time of importation, the Delhi High Court held in the case of Aman Medicals Products Ltd. VS.CC 2010 (250) E.L.T. 30 (Del.) that provisions under Section 27 of the Customs Act, 1962 for refund can be made use of for claiming duty erroneously paid without challenging the original assessment. 11. 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. In such a situation the argument of Revenue based on the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
