9911796707
TMI Blog2019 (10) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... ue which falls for consideration in these appeals is whether in a case where the goods are imported by the assessee after paying Special Additional Duty of customs @ 4% and sold thereafter under a tax/VAT invoice but where the rate of VAT applicable is 'nil' , the appellant is entitled to refund of SAD paid under Notification No 102/2007-Cus or otherwise. 3. The appellant herein imported goods on payment of appropriate duties of customs including Special Additional Duty @ 4% as applicable. At this stage, it would be profitable to mention that goods which are imported into India are chargeable to a number of duties of customs. Among these is Special Additional Duty of Customs (SAD) which is levied @ 4% on some commodities in order to provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial is not liable to excise duty or where such duty is 'nil'. CBEC has issued a Circular No. 667/58/2002-CX dated 26.09.2002 citing the above judgement of the Hon'ble Apex Court and instructing that whenever an exemption is subject to the condition that appropriate duty of excise has been paid on the inputs, the exemption will not be available if the inputs are exempted from excise duty or such duty is 'nil'. Accordingly, the Revenue filed appeals before the First Appellate Authority who, vide the impugned orders set aside the order of the lower authorities and allowed the appeals. Aggrieved by the impugned orders, the present appeals are filed. 5. I have considered the arguments of the learned A.R. and perused the records. The question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n does not make a distinction between these cases on the basis of the rate of VAT applicable on the goods. Similarly, the rate of SAD is only 4% regardless of the exact rate of VAT applicable to the goods. 6. If, for instance, the appropriate rate of VAT is 12% and imported goods suffer only 4% SAD the field is not completely even. On the other hand, if the appropriate rate of VAT is 2% and SAD is levied at 4% the domestic manufacturer gets an unfair advantage to the extent of 2%. Regardless of these anomalies, the taxation law should be applied as it is drafted regardless of consequences. The refund under Notification No. 102/2007-Cus only requires the appropriate amount of VAT to be paid after selling the goods. It does not indicate any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be lower than 4%, the refund would be restricted to the lower amount. As such, it is clarified 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". It is evident from the above clarification of C.B.E. & C. that even if VAT/Sales tax was less than 4%, the appellant was entitled to refund of SAD which was 4% so long as VAT/sales tax was paid. In other words, so long as appropriate VAT/Sales tax was paid, SAD refund was admissible even if the appropriate sales tax/VAT was less than SAD; if the sales tax/VAT was NIL, so be it. In other words what is required in terms of the said notification is payment of appropriate sales tax/VAT regardless of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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