TaxTMI 
TaxTMI 
2011 (12) TMI 402
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....tification No. 102/07-Cus dated 14.09.2007 issued under Section 25(1) of Customs Act, 1962 provides for exemption from SAD subject to the following conditions:- (a) The goods have been imported into India for subsequent sale; (b) At the time of import, the importer shall pay all the duties including SAD as applicable; (c) The importer while issuing the invoices for sale of the said goods shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of SAD levied under Section 3(5) of Customs Tariff Act, 1975 shall be taken. (d) The importer shall file claim for refund of SAD with the jurisdictional Customs Officer; (e) The importer must have paid appropriate tax on the sale of the said goods; and (....
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.... as to whether the sales tax/VAT has been paid on the goods at the appropriate rate and sale in the notification must be understood in the sense in while it has been defined in the VAT Acts of the State Government or the Central Sales Tax Act, 1956. He also observed that since Notification No. 102/2007 does not define 'sale', for the purpose of grant of refund of SAD paid at the time of import, it would be legal and reasonable to adopt the definition of 'sale' in the VAT Acts of State Governments or Central Sales Tax Act, 1956, as that alone determines the charge of VAT/CST upon sale. The Commissioner (Appeals) also observed that Cenvat Credit of SAD paid under Section 3(5) of the Customs Tariff Act has not been availed by the respondent an....
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.... ownership of the goods has remained with the respondent. He also emphasized that by the impugned order, the Commissioner (Appeals) has remanded the matter to the original authority with certain directions for which he has no powers. He, therefore, pleaded that the impugned order is not correct. 4. Sh. Tarun Gulati , Advocate, the learned Counsel for the respondent, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and emphasized that in the Notification No. 102/2007-Cus, in absence of any definition of the word 'sale', this term must be understood on the basis of its definition in the Central Sales Tax Act or the VAT Acts of the State Governments, that the purpose of the exemption Notification No. 102/2....
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....ff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled: (a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said additional duty of customs paid ....
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....) for cash or deferred payment or other valuable consideration. In this case, there is no dispute that the imported Set Top boxes have been supplied by the respondent to their consumers on right to use basis for which some amount has been charged on which VAT has been paid Department's plea that the respondent's transactions with their customers cannot be treated as sale is, therefore, without any basis. It is also not the allegation of the department that the customers to whom the Set Top boxes have been supplied on right to use basis have availed cenvat credit of the SAD. As observed by the Commissioner (Appeals) in the impugned order, even the respondent have not availed the cenvat credit of the SAD in their RG23-C Part-II register. As r....