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TMI Blog2023 (7) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) has however, allowed the refund claim holding that the edible Betel nut and the industrial Betel nut are one and the same. The commissioner (Appeals) has however denied the benefit of two Bills of Entries where the refund has been filed beyond limitation. In those cases Baburam Harichand are in appeal. 3. We have considered the submissions made by Learned AR and also the grounds of appeal. A perusal of the impugned order shows that the Commissioner (Appeals) has given detailed finding as to why there is co-relation between the imported goods and goods is sold by Baburam Harichand. He has also pointed out that there is no allegation that no VAT has been paid on sale of the goods by Baburam Harichand. The observations of the Commissioner (Appeals) are as follows:- "6. Board vide circular No. 6/2008 - Cus dated 28.04.2008 has clarified that the 4% SAD exemption under the said notification is operated through a refund mechanism, wherein the importer would have to first pay the said 4% SAD at the time of importation and thereafter, can claim refund of 4% SAD on production of documents showing that appropriate ST/VAT has been paid. Hon'ble Tribunal in the case of Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be used for edible purpose after processing or as such for Industrial purposes. Although adjudicating authority has not recorded his finding on these arguments. I have examined the matter in the light of HSN, tariff descriptions and other documents. There is no dispute that the BOE was assessed by classifying the imported goods under Chapter 8 which covers "Edible Fruits and Nuts" with CTH 0802090 specified for betel nuts. Explanatory Note given under corresponding heading 080290 of HSN specifies that the heading includes graso [betel nuts used chiefly as a masticator, which implies that both areca nut and betel nuts are one and same. Again, note given under heading 20.08 of the HSN to specify that prepared edible items are covered in the said heading, also refers area nuts and betal nuts as the same product. This is supported with the information available on http://en.wikipedia.org/wiki/Areca_nut which states that areca nut is the seed of the areca palm, and is commonly referred to as betel nut. Again, DGFT has referred areca nut and supari as the same product in the minutes of ALC Meeting No. 02/2007 held on 20.4.2006 as published with URL at http://dgftcom.nic.in/exim/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant in this regard or to controvert the documents and records furnished by them in support of their claims. I find no reason to disprove the documents and collateral evidences (such as undertakings, CA certificates and books of accounts, etc.) admittedly furnished by the appellants as prescribed in the subject notification and Board's circulars, in the absence of irrefutable evidences relating to the identity of goods, and find that such gratuitous action on the basis of superfluous reasons or minor procedural grounds will certainly defeat the very purpose of benefits extended to the trade by the Government vide subject notification which has been emphasized by Hon'ble Tribunal in the decision of Posco Delhi Steel Processing Centers Pvt. Ltd. -2012 (285) ELT 410 (Tri. Ahd.), wherein it is held that:- "14....Unless we are able to hold that the goods sold by the importer are different from the one imported by him, it cannot be held that the Notification benefit would not be available. We are in agreement with the id. A.R's. submission that the Notifications are to be interpreted strictly in terms of words used therein and nothing can be added or subtracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to do so rather than denying to them the benefit on the technical grounds that the time when they could have done so had elapsed. While drawing a distinction between a procedural condition of a technical nature and a substantive condition in interpreting statute similar view was also propounded by the Apex Court in Mangalore Chemicals and Fertilizers Ltd. v. Deputy Commissioner, 1991 (55) ELT. 437 (S.C.). In fact, it is now a frite law that the procedural infraction of Notifications/circulars etc. are to be condoned if exports have really taken place, and the law is settled now that substantive benefit cannot be denied for procedural lapses," 11. I find no authority or reason to deviate from this settled position of law. Besides, in terms of Board's circular, refund is admissible in this case. Therefore, I hold that the adjudicating authority has wrongly traversed beyond the mandate of subject notification while ignoring the statutory documents furnished by the appellants and prescribed procedures followed by them in this regard, hence the impugned orders are liable to be set aside to this extent. 12. Having recorded my findings on the main issue as above. I would now con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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