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TMI Blog2015 (10) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... ust enrichment. 2. The brief facts are that the appellant had imported consignment of certain goods by Bill of Entry dated 27.10.2011 consisting of 'VTRON BRAND' - Video Cube 80" + LED SOURCE + DVI CARD, VTRPM [EDESTA; STAND FOR C-SX803 CUBE, DIGICOM CONTROL MANAGER WORKSTATION etc. At the time of import, the appellant had deposited SAD of Rs. 10,29,782/- vide TR-6 challan dated 28.10.2011 alongwith other duties. The appellant resold the goods to Western Railway vide Sale Invoice No. 6422504843 dated 31.10.2011. In the said invoice dated 31.10.2011, Sales Tax/VAT have been shown separately. Further the declaration to the effect 'in respect of the goods covered in these invoices, no credit of additional duty of customs levied'. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the SAD has not been shown separately. Further, as Western Railway is not an assessee under the Central Excise Act, they are not entitled for credit of SAD under the scheme of taxation. The learned Counsel further relies on the CBE&C's Circular No. 6/2008 dated 28.4.2008, wherein the Board was concerned with regard to procedure for refund of 4% SAD under the provisions of Notification No. 102/07. Vide para 6 of the said Circular, the Board observed that purpose of granting exemption is to ensure that the importer pays 4% CVD (SAD) or the appropriate Sales Tax/VAT and not both. It is not the intention of the Government to allow the importer to recovery the 4% CVD from the buyer as well as to claim refund of this amount from Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sales Tax in the month of November, which is included in the amount of Rs. 1,31,99,352/- which squarely covers the Sales Tax amount of Rs. 35,27,218.76 under the Sales Invoice to Western Railway. 5.1 Further, it is admitted fact that the appellant have shown the amount as receivable from the Customs in their Balance-sheet as per certificate issued by C.A. In this view of matter, I hold that the learned Commissioner (Appeals) has erred in holding that the appellant have passed the burden of the CVD/SAD to the buyer. Accordingly, the appeal is allowed. The appellant would be entitled to refund of the SAD of Rs. 10,29,782/-. I further direct the concerned adjudicating authority to grant the refund within a period of 60 days from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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