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TMI Blog2018 (11) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... ba Rao, Member (Technical) Shri A.V.L.N. Chary, Superintendent/AR for the Appellant. Shri Y. Sreenivasa Reddy, Advocate for the Respondent. ORDER Per: P.V. Subba Rao. 1. These two appeals and the connected stay applications are filed by the revenue against the Orders-in-Appeal Nos. HYD-CUS-000-APP-157-17-18 HYD-CUS-000-APP-158-17-18 dated 27.03.2018. When the matter was called, it was found that the issue is in a short compass and hence the appeals are taken up for final disposal. 2. In the case of C/30788/2018, the original authority passed an order partly rejecting the SAD (Special Additional Duty) refund claimed by the appellant on the ground that with respect to those goods they have not fulfilled the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate authority allowed this refund on the ground that this issue has been settled in the hands of the Tribunal in the case of Gazal Overseas vs. CC, New Delhi [2016 (332) ELT 767] and it has been held that nil rate of VAT is also VAT paid in terms of the notification. In the case of C/30789/2018, the lower authority himself has sanctioned the refund on the same issue relying on the order of the Tribunal in the case of Gazal Overseas (supra). 5. Learned departmental representative takes us through the facts of the case and submits that the ratio of Gazal Overseas case by the Tribunal does not apply to these cases in view of the judgment of the Hon ble Supreme Court in the case of Dhiren Chemical Industries [2002 (139) ELT 3 (SC)] in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rified that it will not be appropriate to reduce the refund amount in such a situation and the entire 4% CVD, if otherwise found eligible, shall be refunded. 7. He, therefore, asserts that it is the position of the CBEC itself that appropriate rate of VAT need not be equal to or more than 4%. Any rate of VAT would be sufficient for them to be entitled to SAD refund. Hence, nil rate of VAT has also to be accepted as VAT paid. He further relies on the case of Malhotra Imports Exports Corporation [2018 (359) ELT 535 (Tri-Chennai)] in which the Tribunal has gone through the cases of Gazal Overseas (supra) and also Dhiren Chemical Industries (supra) and it was held that the ratio in the case of Dhiren Chemical Industries does not apply w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t VAT is nil. The first appellate authority has relied on the judgment of the Tribunal in the case of Gazal Overseas and held that the SAD refund is available. The appeal of the revenue is on the ground that ratio of this order of the Tribunal does not apply because in the case of Dhiren Chemical Industries, the Hon ble Supreme Court held that nil rate of excise duty is not payment of excise duty. I find that in the case of Malhotra Imports Exports Corporation (supra) the Tribunal has considered this argument and has, after taking into consideration the ratio of the order of the Tribunal in the case of Gazal Overseas as well as the judgment of the Hon ble Supreme Court in the case of Dhiren Chemical Industries, come to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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