2018 (11) TMI 1531

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....as returned to the appellant in original along with all the relevant documents by the lower authorities. Aggrieved by the action of the department, the appellant filed Special Civil Appeal No. 15822 of 2013 before the Hon'ble Gujarat High Court. An order was passed by the Hon'ble High Court on dated 21.11.2013 in respect of the said miscellaneous Civil Application. In pursuance to the said high court order, the appellant resubmitted claim to the lower authority. The lower authority contended that the appellant has not submitted any documentary evidence/agreement in support of their refund claim with M/s. Rama Cylinders Pvt. Limited, Bhimasar showing them as their consignment Agent/Stockist so as to be entitled for the refund claim in terms of Notification No. 102/2007-Cus dated 14.09.2007 and also held that claim was not filed by the importer of the goods as specified under Notification No. 102/2007-Cus. Accordingly, the lower authorities rejected the said refund claim. Being aggrieved by the order-in-original, the appeal was filed before the Commissioner (Appeals). Ld. Commissioner (Appeals) upheld the decision of the lower authority and rejected the appeal therefore, the ....

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.... the Hon'ble Gujarat High Court in the case of Rajpetro Speciality in SCA No. 17481/2012. 3. Shri Sameer Chitkara, Ld. Additional Commissioner (AR) appearing on behalf of the Revenue reiterated the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute to the fact that the goods were cleared by SEZ unit under bills of entry to the appellant's DTA unit on payment of SAD of customs. The goods so received by DTA unit from SEZ unit were subsequently sold on payment of Sales Tax/ VAT in the domestic market. With this fact, the major requirement of Notification No. 102/2007 stands fulfilled that the DTA unit that is indeed an importer as per SEZ Act, 2005 and the goods received by DTA were duly SAD paid. The DTA unit has further sold such goods on payment of Sales Tax/ VAT. The lower authorities rejected the claim on the ground which apparently not tenable. As regards the jurisdiction, it is already decided by the Hon'ble Gujarat High Court in the appellant's own case that DTA Unit of the appellant i.e. unit situated at Bhimasar had correctly filed the refund claim dated 12....

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....w come to the conclusion whether the appellant is eligible for the refund of the amount of SAD paid by them or not. In order to appreciate the correct position, we have to record that SAD was imposed and is collected under Section 3(5) of the Customs Tariff Act, 1975 in order to compensate for ST/VAT/CST foregone, and to appropriate the said amount to the State Government. Specific notification was issued to benefit the importers who import the goods not for manufacturing activities, but resold the same in the Indian market. 10. The question that arises for our consideration in this case is whether discharge of SAD by the appellant herein is refundable to them or not. Provision of Section 30 of the SEZ Act reads as under : "30. Domestic clearance by Units. - Subject to the conditions specified in the rules made by the Central Government in this behalf - (a) any goods removed from a Special Economic Zone to the Domestic Tariff Area shall be chargeable to duties of customs including anti-dumping, countervailing and safeguard duties under the Customs Tariff Act, 1975 (51 of 1975), where applicable, as leviable on such goods when imported; and (b) the rate of duty and tariff val....

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....e imported goods with the jurisdictional customs officer before the expiry of one year from the date of payment of the said additional duty of customs; (d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; (e) the importer shall, inter alia, provide copies of the following documents along with refund claim : (i) document evidencing payment of said additional duty; (ii) invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. The jurisdictional customs officer shall sanction the refund 3. on satisfying himself that the conditions referred to in para 2 above, are fulfilled. (emphasis supplied) 12. It can be seen from the above reproduced notification that the said notification provides for exemption to be granted to the goods which are leviable to SAD at the time of importation of goods into India for subsequent sale. It can be seen that the said notification specifically grants exemption by way of refund, on fulfil....