9911796707
TMI Blog2020 (2) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... on 34/1998 has been subsequently rescinded by N/N. 58/1998-Cus. dated 01.08.1998. Therefore, reliance by both the parties on a Notification which has been rescinded is not tenable in law. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 20011 of 2020 - Final Order No. 20073/2020 - Dated:- 29-1-2020 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER Shri G. Subramanian Advocate For the Appellant Shri P. Gopakumar, Jt. Commissioner (AR) For the Respondent ORDER PER : S.S GARG The present appeal is directed against the impugned order dt. 28/08/2019 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has rejected the appeal of the appellant. 2. Briefly the facts of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an identical issue, this Tribunal vide its Final Order No. 20564 - 20581/2017 has allowed the appeal of the appellant with consequential relief. He further submitted that the same Assistant commissioner in his Order (Original) No. 1160/2017 dated 13.09.2017 relating to identical cases of this appellant covered by the above Final Order of the Tribunal, given a clear finding that on the basis of the above Final Order of CESTAT, the importer is eligible for refund of 4% additional duty and the refund due was granted but the same authority in this case has denied the same without any cogent reasons for that. He further submitted that in pursuance of the earlier order of the Tribunal, the appellant has been granted the refund. He also submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al vide its Final Order Nos. 20564 20581/2017 has allowed all the appeals by relying upon the earlier decisions of the Tribunal. Besides this, I find that both the authorities have wrongly relied upon the decision of the Apex Court which was in respect of Notification No. 34/1998-Cus. dated 13.06.1998. Further I find that the said Notification 34/1998 has been subsequently rescinded by Notification 58/1998-Cus. dated 01.08.1998. Therefore, reliance by both the parties on a Notification which has been rescinded is not tenable in law. It is relevant to reproduce the relevant finding of the order of the Tribunal in the appellant s own case for the earlier period which is reproduced herein below: 5. We find that an identical issue came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the rate thereof. It logically follows that if the appropriate rate of sales tax/VAT was NIL then the appropriate sales tax/VAT paid will also be NIL. 5. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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