9911796707
TMI Blog2023 (10) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... ous refund claims on 08.06.2010 under Notification No.102/2007 dated 14.09.2007 for refund of SAD paid at the time of importation. Pursuant to the refund claims, a show cause notice dated 18.11.2010 was issued to the appellant alleging that as per Para 2(d) of the Notification No.102/2007-CUS dated 14.09.2007, the importer shall pay on sale of the said goods appropriate Sales Tax/VAT as the case may be. Therefore, the appellant was required to pay appropriate Sales Tax/VAT along with payment of Additional Customs Duty to be eligible for the sanction of the refund under the said Notification. As the appellant did not pay VAT/Sales Tax while selling the goods in the domestic market, therefore, why their refund claim would not be rejected? The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and it was not alleged in the show cause notice that the refund claims filed by the appellant are time barred. Therefore, the adjudicating authority cannot go beyond the allegation in the show cause notice in subsequent proceedings. In that circumstances, the impugned order is to be set aside. 4. He further submitted that the Ld.Commissioner(Appeals) has rejected their appeal holding that the same is barred by limitation as the adjudication order dated 31.03.2014, dispatched through Speed Post on 02.04.2014. In response to these orders, a letter dated 09.04.2014 has been received by the Assistant Commissioner from the appellant informing that due to the health problem their authorized person is not coming to office to collect the cheque. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions. 8. We find that in earlier round of litigation on merits this Tribunal dismissed the stay applications filed by the revenue. The operative part of the order is extracted below:- "4. We find that the Special CVD is as per sub-section 5 of Section 3 of CETA, 1985. The Special CVD is levied for counter-balancing for Sales Tax/VAT. Undisputedly, the Sales Tax/VAT is exempted in this case. In this regard, learned Commissioner(Appeals) has found that the element of CVD is a tax in lieu of Sales Tax/VAT and that once the Importer fulfills the obligation of paying both the CVD and the Sales Tax/VAT, then he is entitled to refund of the CVD he had paid. The relevant portion of the Commissioner(Appeals') Order is reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant is not entitled for refund claim as they have not paid Sales Tax/VAT and on merits this Tribunal has decided the issue in favour of the appellant, but while sanctioning the refund claim in second round of litigation, the adjudicating authority held that the refund claims are barred by limitation. The said rejection of refund claim is not sustainable in the eyes of law as the same has not been alleged in the show cause notice, when it was issued after filing the refund applications by the appellant. 10. Further, the Ld.Commissioner(Appeals) dismissed the appeal filed by the appellant on merits as well as on limitation. 11. On limitation the Ld.Commissioner(Appeals) observed that the adjudication order was dispatched on 02.04.2014 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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