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TMI Blog2016 (2) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... ics Ltd. imported certain goods and paid the applicable SAD on the same. Thereafter they claimed refunds of the said SAD under Notification No. 102/07-Cus dated 14.9.2007. The said refund claims were rejected by the Assistant Commissioner on the grounds that payment of 4% SAD has not been made by cash, but has been paid using the Reward Scrip i.e. Focus Product Scheme. As per the instructions given in Circular No. 18/2013-Cus dated 29.4.2013 issued from F.No. 401/16/2012-Cus.III, issued by CBEC, the credits in the reward scrips in case of 4% SAD can only be utilized upto 30.9.2013. In the instant case, the refund application itself has been filed on 5.11.2013 and therefore the credit cannot be given after the last date for using the credited amount from the scrips. However, in one of the refunds, refund was allowed in respect of the part of SAD payment made in cash. The matter was agitated by M/s Birla Furukawa Fiber Optics Ltd. before the Commissioner (Appeals), who allowed their appeal on the following grounds: - It is not doubted that the appellant should have taken care at the time of payment of duty to ensure that the repeated Circulars of the Board are followed and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d had lapsed when the refund was filed on 05.11.2013, and that no payment was made in cash, has held that there is non-compliance of the provisions of the Circular dated 13.08.2013 on the part of the appellant and rejected the refund. 5.3 I have examined the matter in the light of existing instructions, and find that the adjudicating authority has not correctly construed Board s Circular 18/2013 supra. As per para 7.3 of Circular No. 6/2008-Cus dated 28.04.2008. Board had clarified that when 4% SAD was paid though DEPB scrip, refund should be allowed by way of re-credit in such scrip and not in cash. Subsequently, DGFT had issued PN No. 38/2009-2014 dated 03.02.2010 and Policy Circular No. 22/2009-14 dated 03.02.2010 which provided that Commissioner of Customs would issue a consolidated certificate showing details of refunds allowed through DEPB re-credit, based on which licensing authority would provide necessary re-credit. Thereafter, Board issued Circular No. 27/2010-Cus dated 13.08.2010 which prescribed that such re-credited DEPB scrips would be allowed for utilization by way of filing manual Bills of Entry for making payment of only BCD and CVD and not 4% SAD so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot specifically preclude an importer from paying SAD from DEPB script and getting refund thereof. There could alber, be delay in getting it. I am of the view that although Circular 10/2012 dated 29.03.2012 (supra) also carried similar directions. Hence, I find that complete denial of re-credit of SAD paid through DEPB scrip prior to 29.04.2013 would be discriminatory, especially in view of the nature of Notification No. 102/2007-Cus dated 14.09.2007, in which it is provided that refund has to be filed within 1 year of the payment of duty. Though earlier Circulars advised payment of duty in cash for expeditious refund, it never precluded importers from payment of duty [SAD] through scrips and getting refund. In this regard, I have also examined the amended paragraph 2.13.2A of the Handbook of Procedures (Vol. 1), 2009-14 vide Public Notice No. 06 (RE 2013)/2009-2014 dated 18.04.2013, (cited in appeal memo) which are as under: (i) Only for the purpose of utilization of re-credit of 4% Special Additional Duty (SAD) of Customs, the freely transferable duty credit scrips (including DEPB), shall be deemed to have been revalidated till 30.09.2013 No further endorsement by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asserted that the order of the Commissioner (Appeals) is against the said instruction issued by the Board and also the DGFT. 5. The learned AR relies on the grounds of appeal. He also relied on the decision of the Tribunal in the case of Faxtel Systems India Pvt. Ltd. Vs. Commissioner of Customs, Bangalore 2014 (299) ELT 501 (Tri-Bang). In para 3 of the said order, the Tribunal has observed as follows: - 3. The very fact that in cases where such re-credit has been allowed, parties have to file manual bills of entry according to Board would show that Board has taken this aspect into consideration. In the case of DEPB bills it may not be possible to allow to utilize the re-credit given by the DGFT in respect of DEPB scrips in respect of EDI Bills. Therefore this instruction appears to have been given. Therefore the only question that has arisen in this case as to whether the credit should be allowed on the live scrip or even on the expired scrip, credit can be allowed is answered by the Board itself though indirectly. Under these circumstances, the impugned order is set aside and the matter is remanded to original authority who shall allow re-credit on each of the scrip with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has observed as follows: - 3. The very fact that in cases where such re-credit has been allowed, parties have to file manual bills of entry according to Board would show that Board has taken this aspect into consideration. In the case of DEPB bills it may not be possible to allow to utilize the re-credit given by the DGFT in respect of DEPB scrips in respect of EDI Bills. Therefore this instruction appears to have been given. Therefore the only question that has arisen in this case as to whether the credit should be allowed on the live scrip or even on the expired scrip, credit can be allowed is answered by the Board itself though indirectly. Under these circumstances, the impugned order is set aside and the matter is remanded to original authority who shall allow re-credit on each of the scrip without looking into whether DEPB scrip has expired or not expired and thereafter it is left to the assessee/importer to go to the DGFT and get the credit and take further course of action as they deem fit. In this case, cited by Learned AR, the re-credit was allowed and it was left to the assessee/importer to go to the DGFT and get the credit and take further course of action as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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