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TMI Blog2023 (10) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... LIZERS LTD VERSUS CC ST, VISAKHAPATNAM CUS [ 2019 (1) TMI 2032 - CESTAT HYDERABAD] , wherein, it had been held that CVD was chargeable at 1% and not 5%, by following rulings of Supreme Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [ 2015 (4) TMI 561 - SUPREME COURT] . If the argument of the Revenue is accepted, it will amount to miscarriage of justice in as much as the original refund application filed was admittedly within the time limit prescribed under the Act. Further, when the refund was rejected on merits, which in appeal, was dismissed as pre-mature on the grounds that appeal on merits was pending before Tribunal and when the Tribunal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order before the Hon'ble Commissioner of Customs (Appeals). The appellant contended that CVD applicable was 1% and not 5%. The appellant filed a refund claim on 10.05.2011 in respect of the BES referred above claiming that the rate of CVD should have been taken as 1% and therefore, an amount of Rs. 1,84,03,413/- paid towards CVD, Cess etc. in excess of 1% is to be refunded with interest. 4. The Deputy Commissioner of Customs vide Order (Original) NO. 80/2011(R) dated 05.12.2011 rejected the said claim and the appellant preferred this appeal against the said order. 5. Commissioner (Appeals) rejected the appeal for refund on the ground that the refund claim was pre-matured as the appeal against Order-in- Appeal No. 31/2011-VCH da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing availed is not fulfilled. This has been decided by the Hon'ble Apex Court in the case of SRF Ltd [2015 (318) ELT 607 (SC)]. We respectfully follow the ratio of the judgment of the Hon'ble Apex Court and hold that the appellant is entitled to the benefit of the exemption notifications 01/2011 & 02/2011- CE in respect of their imports. 7. Heard the parties. 8. The issue whether the import of Muriate of Potash by the appellants is chargeable to CVD at 5% or 1% is, no longer res integra in view of the orders of the Tribunal cited supra. Tribunal has followed the ratio of judgment of the Hon'ble Supreme Court in the case of SRF Ltd., [2015 (318) ELT 607 (SC)] for coming to the conclusion that the appellants were entitled to the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Since no fresh application for refund is filed, refund has become time barred in the facts and circumstances. 12. Having considered the rival contentions, we find that, admittedly, the refund was claimed within the prescribed time but, the appeal against rejection of claim was rejected by the Court below, on the grounds that since the appeal on merits was pending before this Tribunal, it was premature. We further find that the appeal of the assessee have been finally allowed in their favour vide Final Order dated 31.01.2019, wherein, it had been held that CVD was chargeable at 1% and not 5%, by following rulings of Supreme Court in the case of SRF Ltd (supra). 13. We further find that if the argument of the Revenue is accepted, it will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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