TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 61
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....d refund application was rejected by the Assistant Commissioner of Customs, Central Refunds Cell - (SAD-VI), NS-III vide his order dated 21.04.2016. Appeal of the appellant before the Commissioner (Appeals) yielded no fruitful result for which it has approached this forum. 3. In the memo of appeal and during course of hearing of the appeal, learned Counsel for the appellant Shri Ganesh Kumar has placed his reliance in the decision of the Hon'ble High Court of Delhi in the case of M/s Soni India Pvt. Ltd. Vs. Commissioner of Customs, New Delhi reported in [2014 (304) ELT 660 (Del)] and this Tribunal's decision in M/s Bitumen Corporation (I) Ltd. passed on 26.02.2019 to argue that since refund application can only be filed after payment of VAT/CST, the relevant date for completion of one year is to be taken as the date of payment of VAT/CST for which the order passed by the Commissioner (Appeals) is required to be set aside. 4. In response to such submissions, learned Authorised Representative for the respondent-department Mr. Ramesh Kumar, Assistant Commissioner has argued that Hon'ble Bombay High Court, which has jurisdiction over CESTAT Mumbai, has given its finding in C....
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....r than being countervailing, levy of SAD results in double taxation. To be WTO-compliant and upon demand from the industry, the Government of India issued a notification exempting all goods imported into India for sale from levy of SAD, if such goods were resold in India upon payment of appropriate CST/VAT but such exemption has been granted by way of a refund and the procedure prescribing such refund has been issued by way of Circular/Notification No. 102/2007-Cus. dated 14.09.2007. The conditions are enumerated in para 2 of the said notification in which under sub para (c) the importer will have to file a claim of refund to the jurisdictional Customs Officer along with copies of documents including documents evidencing payment of CST/VAS on sale of such imported goods, for which SAD was paid. Sub-para (c) was amended by way of Notification No. 93/2008-Cus. dated 01.08.2008 where such refund claim before the jurisdictional Customs Officer was stipulated to be filed before the expiry of one year from the date of payment of the said additional duty of Customs. 7. Dispute concerning such fixation of one year time period to claim refund had reached the Hon'ble Delhi High Court th....
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....a basis, we have the freedom to consider judgments holding conflicting views given by different High Courts, and then see for ourselves as to which authority, applied more fully and aptly to the facts of a given case, before us. For, in view of the scheme of the Act, under which we are functioning, as brought into focus in paras 59 and 61 above, we are constrained to repel the argument, that we are circumscribed by the view of a particular High Court where the assessee or a particular Collectorate is, because that would inevitably land the Tribunal in a mess, propounding conflicting and contradictory views, vitiating its very existence, and cutting down the wholesome principles, desirability whereof has been highlighted in para 60 above. We, therefore, feel dutybound to determine ourselves, this issue; namely, continuation of proceedings pending at the time of the respective amendments, and adopting the view of Madhya Pradesh High Court as enunciated in Gwalior Rayon case (supra), we hold that these proceedings can continue, which view a Bench of this Tribunal already expressed, without much controversy having been raised in the case of Carew & Co. Ltd. v. Collector of Central Exci....
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....s may be in the market, consequent upon payment of CST/VAT. The cause of action can only arise upon sale of the imported goods which is a market dependent condition and sometimes sale may not occur even within the period of one year. In such a situation, if benefit of exemption notification is not extended to the appellant then the same would amount to double taxation, which no law of the land would approve of, even in the international arena. Therefore, such a duty imposed to counter balance the Sales Tax or the Value Added Tax, Local Tax etc. will have to be refunded and upon payment of those taxes alone, the cause of action would accrue and such counter balancing payment already made was to be refunded. This being the purpose of introduction of SAD, I am of the considered view that amended sub-para (c) of para 2 which stipulated the time period to file claim of refund as one year from the date of payment of said additional duty of Customs should be read as effective payment of additional duty of Customs by way of CST/VAT as the purpose of payment of SAD at the time of import was in the nature of counter balancing the CST/VAT etc., which could be treated at par with security. I a....