TaxTMI 
TaxTMI 
2014 (5) TMI 243
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....inst different orders of the Commissioner (Appeals) passed in the case of refund of 'Special Additional duty of Customs ('SAD' for short) levied under Section 3 (5) of the Customs Tariff Act, 1975, are being considered along with stay petitions filed by the Revenue and also Cross Objections filed by the respondents in certain cases. The cross objections are for supporting the arguments in the Orders-in-Appeal and no additional relief is prayed for. When the matter came up on 02.01.2014, it was seen that the Bench had already passed one Final Order in the matter and it was considered that the stay petitions and appeals and cross objections could be heard together and accordingly, both the sides were informed and the matter was finally taken ....
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....6 (60/1976) or the Rules made there under or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods. In cases where the goods were exempted by Notification No. 29/10-Cus, the respondents herein did not claim such exemption but instead paid duty as notified under the Notification No. 19/06-Cus, just as for goods not covered by Notification No. 29/10-Cus and later claimed refund of such SAD paid as per the provisions of Notification No. 102/07-Cus. The adjudicating authority granted refund in respect of goods not covered by the Notification 29/10-Cus, but rejected the refund claims in respect of the goods covered by Notification No. 29/10-Cus, for the reason that allowing such re....
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.... these cases. 4. The appeals are basically on two grounds. The first ground is that such refund under Notification 102/07-Cus involves re-assessment of bill of entry under Section 17 of the Customs Act. But the importer had not taken any legal action for re-assessment but instead claimed refund and refund claims cannot a route to change assessment done at the time of import. The second ground is that when SAD is exempted under Notification 29/10-Cus, the importer had no option to pay duty and subsequently file refund of the same under Notification No. 102/07-Cus. 5. We have heard arguments on both sides on this issue. On an earlier occasion we had occasion to consider these issues in appeal Nos. 40302 -40305/13, which were disposed of....
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....dment was made under Section 5A of Central Excise Act, 19444 by incorporating sub-section (1A) effective from 13.05.05 as under:- (1A) For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from the whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. It is argued that similar provisions has not been incorporated under Section 25 of the Customs Act and therefore the importers still have the option to avail or not to avail any exemption Notification issued under section 25 of C....
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....exemption under Notification No. 29/2010-Cus at the time of importation by refusing to grant refund under Notification No. 102/2007-Cus, when both the notifications were in operation on the date of importation and date of claiming refund. The decisions of the courts are to the effect that an assessee cannot be forced to avail any particular exemption. The following decisions are relevant:- (i) CCE Vs. Narayan Polyplast-2005 (179) E.L.T. 20 (S.C.) (ii) Reliance Industries Ltd. v. CCE, Ahmedabad - 2003 (152) E.L.T. 423 (Tri.-Mumbai) (iii) Mafatlal Industries Ltd. v. CCE, Vadoda....
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.... the appeals filed by the Revenue on the above grounds are not maintainable. 13. Before disposing of the matter finally, we note that in some cases, the adjudicating authority raised marginal issues like original documents were not filed or that the invoices for sale of the goods were raised on the day of import or prior to that etc. In those cases, the Commissioner (Appeals) has given appropriate directions and the Revenue is not in appeal on those issues. Therefore, we are not making any observation on those issues. However in Appeal No.41326/2013 with HCL Infosystems Ltd as respondent refund in respect of two Bills of Entries were rejected by original adjudicating authority for the reason that the goods were imported through Sea Custo....