9911796707
TMI Blog2024 (11) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... ely incorrect and illegal. As regard the second ground that the appellant have not paid the VAT, it is admitted fact that the goods attracts NIL rate of VAT. It is a settled law that even if the goods attracts NIL rate of VAT it is to be treated as VAT was paid appropriately therefore on this ground also the refund cannot be rejected. The appellant have not carried out any process on the parts imported which was sold as it is. In the identical case where after import of plant under project import the same was used for exhibition of EPC contract. In the case of PMC Project India Pvt Ltd., [ 2019 (4) TMI 1712 - CESTAT AHMEDABAD] this Tribunal held that notwithstanding a composite contract with recipient assessee decides being EPC contract also supplier of all equipments for project for which goods imported, Thus, provisions of project import regulation cannot be used to interpret Notification No. 102/2007-CUS which allows refund of SAD on imported goods if same are sold subsequently on payment of VAT/Sales Tax. Accordingly, the impugned order in that case allowing refund was held sustainable. Thus the refund is admissible under Notification No. 102/2007-CUS. Contention of the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same are mentioned in the invoice separately. It is the case of the department that appellants are not eligible for a refund of 4% SAD as the goods imported via Bill of Entry were parts of the Micro Irrigation System, however, they were sold as Micro Irrigation System without noticing the fact that the parts are sold separately, and installation charges are separately indicated in the invoice. Thus, according to the department, the imported goods are not sold as such (in the form of parts) the basic condition of the Notification No. 102/2007-Cus dated 14.09.2007 has not been fulfilled. 2. Shri Manish Jain learned counsel appearing on behalf of the appellant made the following submission:- 6. It is submitted that the appellants are eligible for the refund under Notification No. 102/2007-Cus as imported parts of Micro Irrigation Systems are sole subsequent to imports on payment of applicable VAT. 7. It is submitted that Ld. Commissioner of Customs (Appeals) while passing the impugned order has lost sight of the fact that work orders and sales invoices issued by appellants separately show sales of parts, applicable VAT on it, and installation charges, etc. Thus, there are clear se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods imported have already been sold into the domestic market on payment of applicable VAT/Sales tax, which is nil in the present case. 10. The appellants have fulfilled all the requirements of the concerned notification including the payment of the duties on importation, filing of the claim within one year from the date of payment of the additional duty, paying appropriate VAT/Sales Tax at the time of Sale of the goods and submitted all the documents required to be submitted. 11. Further, the concerned notification grants exemption from SAD to those goods that have been imported for subsequent sale. As long as the goods that have been imported are subsequently sold, the notification requirement has been fulfilled and the exemption benefit has to be given. It does not matter whether any further process has taken place or not for the notification to be applicable. 12. It is submitted that the phrase when imported into India for subsequent sale grants the benefit of the notification to those goods that are imported for subsequent sale. The concerned notification only intends to exclude goods that are imported not for being sold subsequently in India but are consumed by the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case, the appropriate Sales Tax/VAT being NIL vide the above-referred notification, the Appellants cannot be said to have violated the said condition of the notification inasmuch as it cannot be said that they have not paid appropriate Sales/VAT Thus, it is submitted that as long as the appropriate VAT/Sales tax was paid, the SAD refund was admissible even if the appropriate Sales Tax/VAT was less than SAD. 21. It is submitted that Circular No. 94/2010 and Circular No. 34/2010-Cus., dated 15-9-2010 stated that exemption under Notification No. 102/2007 is not available in case the imported goods are used for manufacturing as CENVAT credit is available on Special CVD. However, in the present case, these parts are installed at the site of the purchase without any further process. Thus, there is no manufacturing activity and no CENVAT credit is availed against the Special CVD paid at the time of import. Thus, the impugned order has wrongly relied upon the aforesaid circular to reject the refund claim. 22. It is submitted that once the taxpayer fulfills the eligibility criteria and falls within the ambit of the exemption Notification, a wider and a liberal interpretation s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions: Mahindra Mahindra Limited v. Union of India, 2022 (10) TMI 212 Chirpal Poly Films Ltd. Vs. Commissioner of Customs, Ahmedabad, Final Order No. 11628-11630/2024 dated 23.07.2024 3. On the other hand, Shri Girish Nair learned Assistant Commissioner AR appearing on behalf of the revenue reiterates the findings of the impugned order. He submits that since the appellant have not sold the same goods which was imported the refund of SAD under Notification No. 102/2007-CUS is not admissible. He placed reliance on the following judgments:- Proflex Systems Vs. Commissioner of Customs reported at 2017 (353) E.L.T. 142 (guj.) Proflex Systems Vs. Commissioner of Customs reported at 2017- TIOL-273-SC-CUS 4. We have carefully considered the submissions made by both the sides and perused the records. We find that the lower authorities have rejected the refund claim on the ground that the parts on which SAD was paid were not sold as such but in a different form for the purpose of installation of irrigation system. Secondly, for sale of goods appellant have not paid the VAT as the said goods attracts NIL rate of VAT. We find that as regards the first ground for rejection, on perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A/ 11112- 11113/2022 dated 08.09.2022 4.1 In the case of Agarwalla Timbers Pvt Ltd (supra) which was affirmed by the Gujarat High Court reported in 2014 (299) E.L.T. 519 (Guj.H.C.) wherein the tribunal allowed the refund of SAD under Notification No. 102/2007-CUS even in cases where timber logs was imported and sold subsequently after being sawn. The appellant s present case is on better footing that the appellant have not carried out any process on the parts imported which was sold as it is. 4.2 In the identical case where after import of plant under project import the same was used for exhibition of EPC contract. In the case of PMC Project India Pvt Ltd., this Tribunal held that notwithstanding a composite contract with recipient assessee decides being EPC contract also supplier of all equipments for project for which goods imported, Thus, provisions of project import regulation cannot be used to interpret Notification No. 102/2007-CUS which allows refund of SAD on imported goods if same are sold subsequently on payment of VAT/Sales Tax. Accordingly, the impugned order in that case allowing refund was held sustainable. 4.3 In the case of Palava Dwellers Pvt Ltd wherein the fact w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for refund of SAD. 2. Although nobody appeared for the appellants, in the absence of any request for adjournment, we proceed to decide the appeals on merit. 3. Ld. DR pleaded that as no sales tax/VAT was paid on the goods, they were not entitled to the impugned refund. 4. We have considered the contention of Ld. DR and also perused the refund papers. Notification No. 102/2007, dated 01.09.2007 as amended allowed refund of SAD subject to the condition that the importer shall pay appropriate sales tax or VAT, as the case may be. In the present case, the appropriate sales tax or VAT being NIL the appellants cannot be said to have violated the said conditions of the said notification inasmuch as it cannot be said that they have not paid appropriate sales tax/VAT. In this regard, it is seen that vide Circular No. 6/2008, dated 28.04.2008 C.B.E. C. in para 5.3 thereof clarified as under : 5.3 The exemption contained in the said notification envisages that the importer shall file a refund claim for 4% CVD ( said additional duty of Customs ) paid on imported goods and shall pay on sale of the said goods appropriate Sales Tax or VAT as the case may be . Hence, it is clear that there is no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof clarified as under: 5.3 The exemption contained in the said notification envisages that the importer shall file a refund claim for 4% CVD ( said additional duty of Customer ) paid on imported goods and shall pay on sale of the said goods appropriate Sales Tax or VAT as the case may be . Hence, it is clear that there is no stipulation in the notification that the exemption is available only if the rate of ST/VAT is equal to or higher than the rate of additional duty of Customs; nor is there a condition that if the rate of ST/VAT happen to be lower than 4%, the refund would be restricted to the lower amount. As such, it is clarified that it will not be appropriate to reduce the refund amount in such a situation and the entire 4% CVD, if otherwise found eligible, shall be refunded . It is evident from the above clarification of C.B.C. 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 requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
