2018 (11) TMI 933

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....n up for final disposal. 2. In the case of C/30788/2018, the original authority passed an order partly rejecting the SAD (Special Additional Duty) refund claimed by the appellant on the ground that with respect to those goods they have not fulfilled the conditions of the notification for SAD refund inasmuch as they have cleared the goods on payment of nil rate of VAT as applicable to the goods. Aggrieved by this order, the assessee appealed to the first appellate authority, who vide the impugned order modified the order of the lower authority and sanctioned the rejected part of the refund. Revenue is in appeal against this order of the first appellate authority. 3. In the case of C/30789/2018, the lower authority has sanctioned the SAD re....

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....rough the facts of the case and submits that the ratio of Gazal Overseas case by the Tribunal does not apply to these cases in view of the judgment of the Hon'ble Supreme Court in the case of Dhiren Chemical Industries [2002 (139) ELT 3 (SC)] in which it was held that the appropriate amount of excise duty would not include cases where the goods are not liable to excise duty or chargeable to nil rate of excise duty. It is his assertion that same ratio would apply to the interpretation of Notification No. 102/2007-CUS. Therefore, first appellate authority has erred in sanctioning the refund when the appropriate rate of VAT was nil. Similarly in the case of C/30789/2018, it is his assertion that first appellate authority has erred in rejecting....

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....(359) ELT 535 (Tri-Chennai)] in which the Tribunal has gone through the cases of Gazal Overseas (supra) and also Dhiren Chemical Industries (supra) and it was held that the ratio in the case of Dhiren Chemical Industries does not apply with respect to the refund of SAD and even nil rate of appropriate payment of duty would be sufficient for appropriate rate of SAD. Para 4 & 5 are reproduced below. "4. However, it is seen that the Tribunal in the case of Kubota Agricultural India Pvt. Ltd. v. Commissioner of Customs, Chennai reported in 2017 (6) TMI 565-CESTAT, Chennai has passed a detailed order considering the said stand of the Revenue that the Gazal Overseas did not consider the Supreme Court's decision in Dhiren Chemicals (supra) and ha....