TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 216
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....AT" as such only on account of the fact that the bill was a composite bill for laying of Proflex Roof with material on the building ? B.Whether the Hon'ble Tribunal clearly erred in holding that the sheets in coils became a different product merely by virtue of the fact that the same were corrugated at the stage of placing them on the roof ? C.Whether the Hon'ble Tribunal clearly erred in law in adjudicating that the corrugation led a product different from the original sheet ? D.Whether the Hon'ble Tribunal clearly erred in law in not granting the said refund on the ground that the actual quantity of sheets used is not known till the same is used ?" 2.0. The facts leading to the present appeal in nutshell are as under: 2.1. That the appellantassessee is engaged, inter alia, in the activity of importing prime quality prepainted aluminum zinc alloy quoted steel sheet in coil falling under Tariff Heading No. 7210. It is the case on behalf of the assessee that the appellant is also carried out works contract of laying Proflex Roof with material on the building. That the assessee imported the coils on payment of imported duty as well as on payment of Special Additi....
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....e subjected to "VAT" as such only on account of the fact that the bill was a composite bill for laying of Proflex Roof with material on the building ? B.Whether the Hon'ble Tribunal clearly erred in holding that the sheets in coils became a different product merely by virtue of the fact that the same were corrugated at the stage of placing them on the roof ? C.Whether the Hon'ble Tribunal clearly erred in law in adjudicating that the corrugation led a product different from the original sheet ? D.Whether the Hon'ble Tribunal clearly erred in law in not granting the said refund on the ground that the actual quantity of sheets used is not known till the same is used ?" 3.0. Shri Devan Parikh, learned Senior Advocate appearing for the appellantassessee has vehemently submitted that the impugned judgment and order passed by the learned Tribunal is contrary to the object and purpose of the Notification dated 14.09.2007 which provides for refund of SAD. 3.1. It is further submitted by Shri Devan Parikh, learned Senior Advocate for the assessee that all the authorities below have materially erred in holding that the assessee had not paid VAT on the imported goods i.e ....
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....ted that therefore, in the present case when the assessee submitted the proof of payment of "VAT", the assessee is entitled to refund of SAD as per the Notification dated 14.09.2007. 3.4. It is further submitted by Shri Devan Parikh, learned Senior Advocate for the assessee that instead of granting such refund, a technical view was taken that the invoice is a composite invoice including for sale of materials, and "VAT" is paid thereon, therefore, the refund would not be available. 3.5. It is submitted that after the coils are imported by the assessee, the assessee enter into the contract of turnkey work. It is submitted that the assessee supplies the material specifically mentioned in the purchase order and the invoices and also charging the amount of turnkey works which includes the costing material. It is submitted that thus, when VAT is paid thereon, the same would be on the material supplied. It is submitted that under the VAT Act, when the VAT is paid under the contracts, a deduction of labour cost is allowed, so that, "VAT" would only be charged on the material. It is submitted that as such VAT is levied on the sale of goods and not on service. It is submitted that therefor....
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....e on hand. It is submitted that in all cases where a turn key project is to be completed, the rate would be on the basis of square meter. 3.9. It is further submitted by Shri Devan Parikh, learned Senior Advocate for the assessee that then in any case, even if it is presumed for the sake of argument that what is supplied is corrugated roofing, the same would still not be supply of a different material. It is submitted that mere corrugation of coils would not change the same to a different material. In support of above submission, learned counsel for the appellant has heavily relied upon the following decisions. (1) In the case of Commissioner of Customs vs. Variety Lambers Pvt Ltd reported in 2014 (302) ELT 519. (2) In the case of Commissioner of Customs vs. Posco India Delhi Steel Processing Centre Pvt Ltd. reported in 2014 (299) ELT 263. (3) In the case of Shri Ashok Jindal (Member) J Eqvinox Solution Ltd vs. Commissioner of Customs (Import) Mumbai reported in 2011 (272) ELT 310. (4) In the case of Vijrom Chem Pvt Ltd vs. Commissioner of Custom, Bangalore reported in 2006(199) ELT 751, (5) In the case of Agarwalla Timbers Pvt Ltd vs. Commissioner of Customs, Kandla reported....
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....roflex Roof" including value of materials. It is submitted that therefore, when the appellant has not paid the VAT on the imported goodscoil sheets and the VAT has been paid altogether on a different product namely "Proflex Roof", it is rightly held that appellant is not entitled to refund of Special Additional Duty under the Notification No. 102/2007Cus dated 14.09.2007 as claimed by the appellant. Making above submissions, it is requested to dismiss the present appeal. 5.0. Heard the learned advocates for the respective parties at length. 6.0. At the outset, it is required to be noted that the appellant claimed the refund of Special Additional Duty paid on the imported goods, under the notification No. 102/2007Cus dated 14.09.2007. The Notification No. 102/2007Cus dated 14.09.2007 reads as under: "Special CVDExemption to all goods when imported for subsequent sale. In exercise of the powers conferred by subsection (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when ....
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.... is imported by the appellant is coil sheets. The Special Additional Duty is paid on such imported goods namely coil sheets. Thereafter, what is manufactured and sold by the appellant is "Proflex Roof" and on such "Proflex Roof" VAT is paid. Therefore, it cannot be said the assessee has paid the VAT on the goods imported, on which, Special Additional Duty has been paid. Under the circumstances, one of the condition mentioned in the Notification No. 102/2007Cus dated 14.09.2007 has not been complied with. 7.0. It is the case on behalf of the appellant that in fact what is used subsequently is the coil sheets and only the process of corrugation is done which subsequently installed on the building as per the requirement of the customer and as per the works contract. It is the case on behalf of the appellant assessee that what they are charging is for the services and therefore, for providing service and / or on the value on the services provided, they are not liable to pay the VAT under the provisions of VAT Act. However, what is required to be considered is the interpretation of Notification No. 102/2007Cus dated 14.09.2007 and whether all the conditions mentioned in the Notificatio....