TaxTMI 
TaxTMI 
2019 (5) TMI 722
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....s filed after one year from date of payment of Customs (SAD) in terms of amended Notification No. 93/2008-Cus dated 01.08.2008. 2. Sh. Deepak Kumar, Ld. Consultant appearing on behalf of the appellant submits that though the refund claim was filed after one year from the date of payment of SAD but it was filed within one year from date of sale of goods, therefore, the refund should not have been rejected on time bar. He submits that on the identical issue on limitation in respect of refund under Notification No. 102/2007-Cus dated 14.09.2007, therefore, various following judgments supporting the case of the appellants. • United Chemicals Industries 2017 (356) ELT 466 (Tri. -All.) • Auto Dynamic Corporation 2018 ....
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....These both conditions are contrary, therefore, considering the overall notification harmoniously, I am of the view that one year should be reckoned from the date of sale of the goods. This issue has been considered by the various Coordinate Benches of Tribunal in the case of United Chemicals Industries (supra), this Tribunal has passed following order: "6.Having considered the rival contentions and on perusal of the facts on record, I hold that the ld. Commissioner (Appeals) have erred in rejecting the refund claim on the ground of limitation relying on the Circular No. 06/2008-Cus., dated 28-4-2008 under Section 27 of the Customs Act, 1962. I further hold that limitation has to be computed on or after 30-11-2010, being the month o....
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....ing a trader. Unless and until VAT/ST/CST is paid by the assessee, they cannot file refund claim, therefore, it is required to be seen on which date cause of action arose of filing the claim of refund. Admittedly, the relevant date in such a case as per Section 11B of the Central Excise Act, 1944, when is the cause of action arose i.e. the date of payment of VAT/ST/CST. From that date, within one year, the assessee required to file the refund claim. Therefore, the relevant date (in these matters) is the date of payment of VAT/ST/CST. Admittedly, in all the matters placed before me the refund claims have been filed by the appellants within one year from the date of payment of VAT/ST/CST. 8. In that circumstances, I hold that the ref....
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.... is within the limitation of one year. Accordingly, he prays for allowing the appeal with consequential benefits to the appellant. 5.Heard the ld. AR for Revenue, who relied on the impugned order. 6.Having considered the rival contentions and on perusal of the facts on record, I hold that the ld. Commissioner (Appeals) have erred in rejecting the refund claim on the ground of limitation relying on the Circular No. 06/2008-Cus., dated 28-4-2008 under Section 27 of the Customs Act, 1962. I further hold that limitation has to be computed on or after 30-11-2010, being the month of November, when the goods were finally sold under the concerned Bill of Entry No. 93, dated 4-11-2009. Accordingly, the impugned order is set aside a....
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....iles necessary documents to prove that proper Sales Tax or VAT as the case may be, has been paid. As settled by various higher judicial forums, the purpose of imposing SAD is to protect and ensure collection of appropriate sales tax or VAT that is payable on imported goods, which is paid upfront at the time of imports. SAD is not credited and set off from the sales tax or VAT, which is refundable to an importer after ascertaining the appellant to appropriate Sales Tax / VAT. I note that Hon'ble Delhi High Court in the case of Gulati Sales Corporation 2017 (supra) has considered both Notifications Nos.102/2007 and 93/2008; and also considered the decision of Sony India Pvt. Ltd. (supra) and has ruled as under :- 8. We, therefore, do....
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....ble to the importer after evidence with regard to payment of appropriate sales tax or value added tax is produced. The documents and papers have to be produced before the custom authorities, checked and verified, before refund is issued. It goes without saying that the intent is that no double duty/tax - first, in the form of SAD and secondly, in form of sales tax or value added tax, is to be paid. 10. Circular dated 28th April, 2008 quoted above specifically states the view and understanding of the Revenue that Section 27 of the Act is not made applicable to the Notification No.102/2007 and the time limit prescribed under the said Section would not be applicable. The Revenue notwithstanding the said understanding and their Circula....