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TMI Blog2019 (11) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... PRISES, M/S ANAND ASSOCIATES VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [ 2015 (12) TMI 427 - CESTAT NEW DELHI] . Appeal allowed - decided in favor of appellant. - Customs Appeal No 30283 of 2019 - A/30655/2019 - Dated:- 16-10-2019 - HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri N D Kumar, Chartered Accountant for the Appellant. Shri N. Bhanu Kiran, Assistant Commissioner for the Respondent. ORDER PER: P.V. SUBBA RAO 1. This appeal is filed against the Order-in-Original No.24/2017-18 (Cus) (R), dated 06.09.2017. 2. The issue is whether in a case where goods are imported by the assessee after paying Special Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. 4. In the present case, the appellant imported goods and sold them under VAT invoices. However no VAT was paid because the goods in question were exempted from payment of VAT. In other words, the applicable rate of VAT was nil . Thereafter, the appellant filed applications for refund of SAD which were sanctioned by the Assistant Commissioner after following the procedure. The aforesaid orders of the Assistant Commissioner were reviewed by the Commissioner as it was felt that in terms of the exemption notification, refund is available only if the appropriate amount of VAT was paid. It is felt by the department that when VAT is exempt, there was no question of payment of VAT and therefore the importer cannot claim refund u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty has been paid on raw materials, the Hon ble Supreme Court has held in the case of Dhiren Chemicals Industries (supra) that nil excise duty cannot be said to be payment of excise duty. The present case is not with respect to central excise duty but with respect to payment of VAT. The very purpose of imposing the special additional duty of customs @ 4% is to provide a level playing field for Indian Manufacturers whose products suffered VAT while the imported goods do not. When the imported goods are subsequently sold, such sale brings the imported goods at par with the domestic goods because both suffer the same rate of VAT. Therefore, the SAD which is levied is refundable as per the Notification No. 102/2007 Cus. This parity between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We have considered the contention of ld. DR and also perused the refund papers. Notification No. 102/2007, dated 14-9- 2007 as amended allowed refund of SAD subject to the condition that the importer shall pay appropriate sales tax or VAT, as the case may be. In the present case, the appropriate sales tax or VAT being NIL the appellants cannot be said to have violated the said conditions of the said notification inasmuch as it cannot be said that they have not paid appropriate sales tax/VAT. In this regard, it is seen that vide Circular No. 6/2008, dated 28-4-2008 C.B.E. C. in para 5.3 thereof clarified as under : 5.3 The exemption contained in the said notification envisages that the importer shall file a refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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