2016 (8) TMI 527 - AT - Customs

Tribunal rules in favor of appellant on SAD refund eligibility, citing precedent decisions

M/s. Illusion 4 Real Versus C.C. Jaipur-I

The Tribunal allowed the appeal, granting relief to the appellant regarding the refund of Special Additional Duty (SAD) under notification 102/07-CUS. It ... Refund of SAD – sale of imported goods on payment of appropriate sales tax or VAT – denial of refund claim – goods exempted from payment of VAT under sales tax act – Held that: - if the sales tax / VAT payable under the Sales Tax Act is “nil”, the appropriate sales tax paid will also be “nil” and it cannot be said that the importers did not pay appropriate VAT. Stamping the invoice with “no credit of additional duty of customs levied under section 3(5) of the Customs Tariff Act 1975' – another ground adopted by Commissioner(Appeals) of non-fulfilment of condition – Held that: - admittedly Commissioner (A) has travelled beyond the show cause notice. There is no allegation of contravention of non-stamping of the invoice to the effect that no credit of SAD would be admissible to their customers. The only allegation made in the show cause notice is as regards contravention of conditions relatable to non-payment of VAT at the time of sale of goods. Commissioner(appeals) cannot go beyond the issue mentioned in SCN – appeal allowed – decided in favor of appellant. Issues Involved:Refund of Special Additional Duty (SAD) under notification 102/07-CUS dated 14.09.2007; Interpretation of conditions for refund eligibility; Allegation of non-payment of VAT and non-stamping of invoice with specific declaration.Analysis:1. Refund of SAD under Notification 102/07-CUS:The main issue in the appeal was the refund of Special Additional Duty (SAD) under notification 102/07-CUS dated 14.09.2007. The notification allows for the refund of additional duty of customs subject to specific conditions outlined within it. One such condition is the requirement that the appellant discharges its sales tax or VAT liability when selling the imported goods in the domestic market.2. Dispute over Payment of VAT:The appellants faced a show cause notice proposing to deny the refund claim due to the alleged non-payment of VAT. The contention was that the goods in question were exempt from VAT under the sales tax act, resulting in a 'nil' VAT payment. However, the lower authorities rejected this argument and the refund claim. The Commissioner (A) also cited non-fulfillment of another condition from the notification related to stamping the invoice with a specific declaration regarding the admissibility of SAD credit to customers.3. Interpretation of Conditions and Precedent Decisions:The appellant argued that the Commissioner (A) exceeded the scope of the show cause notice by considering additional grounds beyond the alleged non-payment of VAT. Reference was made to precedent decisions of the Tribunal, particularly the case of M/s Gazal Overseas Vs. CC New Delhi, where a similar situation was addressed. The Tribunal in that case had held that a 'nil' payment of VAT can be considered appropriate payment, supported by a relevant circular.4. Decision and Rationale:Upon review, it was noted that the Commissioner (A) had indeed gone beyond the initial allegation in the show cause notice by considering the non-stamping of the invoice issue. The Tribunal's previous decision in a similar case was cited, emphasizing that if the sales tax or VAT payable under the Sales Tax Act is 'nil,' then the appropriate tax paid would also be 'nil.' Consequently, the Tribunal set aside the impugned order and allowed the appeal, granting consequential relief to the appellant.In conclusion, the judgment focused on the correct interpretation of the conditions outlined in the notification for the refund of SAD, addressing the specific issue of VAT payment and the relevance of precedent decisions in determining the eligibility for refund.