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TMI Blog2024 (7) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 27 of the Customs Act. The appellant is not requesting for change of the assessment made at the time of importation. For grant of refund of SAD as per notification 102/07-Cus. re-assessment of Bills of Entries are not prescribed under the notification.' Regarding reliance on the letter F. No. 334/1/2010-TRU dated 26.02.2010, it is explaining the scope of N/N. 29/2010, wherein outright exemption from SAD was provided to goods imported in pre-packaged form and intended for retail sale. In the absence of any specific provision superseding the N/N. 102/2007 dated 14.09.2007 in Notification No. 29/2010, when it was introduced, it is open for the Appellant to opt for either of them and in the case the appellant has opted for N/N. 102/2007 and paid SAD at the time of import, which cannot be considered as admission of the liability to pay SAD. The appellant is eligible for refund of SAD under N/N. 102/2007 dated 14.09.2007 - the impugned order is set aside - appeal allowed. - Hon'ble Mr. P.A. Augustian, Member (Judicial) And Hon'ble Mr. Pullela Nageswara Rao, Member (Technical) Mr. Nagaraja N., Advocate for the Appellant Mr. K. Vishwanath, AR for the Respondent ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring Works (Cal.) Pvt., Ltd.-1991 (56) E.L.T. 470 (Tribunal). Learned counsel drew our attention to the Section 5A of the Central Excise Act, 1944, where there is a clear stipulation in sub-section (1A) that where an exemption in respect of any excisable goods from the whole of the duty of excise has been granted absolutely, manufacturer of such excisable goods shall not pay the duty of excise on such goods. However, Section 25 of the Customs Act, 1962 makes it clear that there is no such similar stipulation in the said provision. Therefore, the option adopted by the Appellant for following Notification No. 102/2007 was in order. The Learned counsel also drew our attention to the Public Notice No. 45/2012 dated 05.11.2012 issued by the office of the Commissioner of Customs, where it is advised to the importer to follow exemption route which will reduce the burden on the importer of first paying duty and thereafter claiming refund. Therefore, there was no prohibition or restriction that exemption has to be compulsorily followed and refund cannot be allowed. To substantiate the same, the Learned counsel relied on the decision of the Tribunal in the matter of CC Vs. Westcon India Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... praying that the Order-in-Appeal may be set aside. 7. Arguing for the respondent, the learned Advocate submits that the importer is not asking for changing the assessment made at the time of import. They are only asking for refund of the duty paid at the time of import in terms of the provisions under Notification No. 102/2007- Cus. The refund under this notification is on a different footing as compared to other refunds under Section 27 of Customs Act. She points out that in the case of any goods for which SAD is payable and for which Notification No. 29/2010-Cus. is not applicable, the importer has to pay SAD as applicable at the time of importation and thereafter claim refund of SAD as per the provisions of Notification No. 102/2007-Cus. after satisfying the main condition of selling the goods on payment of applicable VAT and satisfying various other conditions in the notification. The said Notification by its very nature cannot be claimed at the time of importation of the goods. It is claimed normally almost one year after the period of importation after selling the goods on payment of VAT on such goods. In such a situation, reassessment of the goods are not intended or insist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Apex Court in Priya Blue Industries (supra) would apply. Even in such cases, the Hon ble Delhi High Court has clarified that the said decision would apply only in a case where there was a dispute between the Department and the importer at the time of importation of the goods and the matter was adjudicated either through assessment of BE or through further proceedings. Where there was no lis at the time of importation, the Delhi High Court held in the case of Aman Medicals Products Ltd. v. CC-2010 (250) E.L.T. 30 (Del.) that provisions under Section 27 of the Customs Act, 1962 for refund can be made use of for claiming duty erroneously paid without challenging the original assessment. 11. In this case, the refund is not claimed under Section 27 of the Customs Act. The appellant is not requesting for change of the assessment made at the time of importation. For grant of refund of SAD as per notification 102/07-Cus. re-assessment of Bills of Entries are not prescribed under the notification. In such a situation the argument of Revenue based on the decision of the Apex Court in the case of Priya Blue Industries (supra) is totally misplaced. 5. The Learned counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to get the order modified under Section 128 or under other relevant provisions of the Act. 8. Heard both sides and perused the records. It is an admitted fact that at the time of import by the Appellant, there were two prevailing Notifications. The Notification No. 102/2007 was covering all the goods imported for trading purposes, whereas Notification No. 29/2010 was available for pre-packaged goods intended for resale and other specified goods in the Notification. There was no restriction on the importers to avail the benefit of either Notifications. Moreover, the issue is squarely covered by the decision of the Tribunal in the matter of M/s Suburban Engineering Works (Cal.) Pvt. Ltd., where it is held that:- 9. Going by the ratio laid down in the above-mentioned catena of decisions I hold that in the present case the failure to claim exemption from duty available in terms of the Notification in question, by itself cannot invalidate the refund claim on that score alone. If the conditions had been fulfilled, the goods would have been cleared free of duty. The only disability the respondent suffered for such a failure was that they had to clear the goods on payment of duty. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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