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TMI Blog2019 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... deficiency cum-personal hearing memo was issued to the appellant on 07.10.2016 by the respondent-department that said refund claim was filed after expiry of one year in contravention of Notification No. 93/2008 dated 01.08.2008 and as appellant did not appear to contest the same, refund claim was rejected as was time barred. Appellant successfully challenged the same before the Commissioner (Appeals) and ultimately approached this forum. 3. In his memo of appeal and during course of hearing, the learned Counsel for the appellant Mr. H.K. Hirani in referring to the refund Notification No. 102/2007-Cus. conditionalities and placing reliance on the Hon'ble Delhi High Court judgment delivered in the case of M/s Sony India Ltd. [2014 (304) ELT 660 (Del.)] which had attained finality in view of dismissal of SLP application by the Hon'ble Supreme Court, had argued that for refund of SAD, no time period has been prescribed to claim such refund and the learned Commissioner (Appeals) had ignored the judicial precedent in rejecting its appeal filed before him and opined that in CMC Info Systems Ltd. Vs. UOI in the judgement of Hon'ble High Court of Bombay - [2017 (349) ELT 236 (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst its excise duty liability for which SAD is not a cost for a manufacturer and as such does not operate as a countervailing tax. However, such credit was not available to a service provider or to the traders. An importer - traders who imports and sells goods in India upon payment of CST/VAT had to first pay SAD, and then CST/VAT on sale of the imported goods. 6.1 It was felt that for a trader, rather than being countervailing, levy of SAD results in double taxation. To be WTO-compliant and upon demand from the industry, the Government of India issued a notification exempting all goods imported into India for sale from levy of SAD, if such goods were resold in India upon payment of appropriate CST/VAT but such exemption has been granted by way of a refund and the procedure prescribing such refund has been issued by way of Circular/Notification No. 102/2007-Cus. dated 14.09.2007. The conditions are enumerated in para 2 of the said notification in which under sub para (c) the importer will have to file a claim of refund to the jurisdictional Customs Officer along with copies of documents including documents evidencing payment of CST/VAS on sale of such imported goods, for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in Article - 227 would mean to read State Tribunal, to be subjected to the jurisdictional High Court. Further five Members Larger Bench of this Tribunal in the case of Atma Steel Pvt. Ltd. & Others Vs. Collector of Central Excise, Chandigarh and others reported in [RLT (LB-CEGAT)-87] had held as follows. "70. We also feel that as a Tribunal, working on all- India basis, we have the freedom to consider judgments holding conflicting views given by different High Courts, and then see for ourselves as to which authority, applied more fully and aptly to the facts of a given case, before us. For, in view of the scheme of the Act, under which we are functioning, as brought into focus in paras 59 and 61 above, we are constrained to repel the argument, that we are circumscribed by the view of a particular High Court where the assessee or a particular Collectorate is, because that would inevitably land the Tribunal in a mess, propounding conflicting and contradictory views, vitiating its very existence, and cutting down the wholesome principles, desirability whereof has been highlighted in para 60 above. We, therefore, feel duty-bound to determine ourselves, this issue; namely, continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from an obligation or liability imposed". Therefore, purpose of this exemption notification is not to refund the tax but to exempt from payment of tax or duty which was not due to be paid but was collected to meet certain contingency. The right to avail such exemption from payment of duty would accrue upon sale of the imported goods in the market consequent upon payment of CST/VAT. The cause of action can only arise upon sale of the imported goods which is a market dependent condition and sometimes sale may not occur even within the period of one year. In such a situation, if benefit of exemption notification it not extended to the appellant then the same would mount to double taxation, which no law of the land would approve of, even in the international arena. Therefore, such a duty imposed to counter balance the Sales Tax or the Value Added Tax, Local Tax etc. will have to be refunded and upon payment of those taxes alone, the cause of action would accrue and such counter balancing mode of payment was to be refunded. This being the purpose of introduction of SAD, I am of the consider view that amended sub-para (c) of para 2 which stipulated the time period to filed claim of refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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