TaxTMI 
TaxTMI 
TaxTMI 
2019 (12) TMI 654
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....,14,283/- of appellant M/s. Shree Namolar International (P) Ltd, rejection of refund of Special Additional Duty (SAD) was also challenged before the Commissioner (Appeals) who passed a common order rejecting both the refunds which has been assailed in this appeal. 3. During the course of hearing of the appeal, Learned Counsel for appellant submitted in appellant M/s. Ideal Tridon Clamp's case that provisional assessment was finalised on 27-12-2017 and in view of Section 27 of the Customs Act, appellant was entitled for refund within one year of the date of final assessment for which invocation of notification no. 93/2008 dated 1st August 2008 should have been dealt by the Commissioner to mean the date of final assessment as date of payment, which was not done by him and giving over riding effect to such executive notification over the Statutory law, he considered the date of payment of SAD for the purpose of calculation contrary to the findings of the Hon'ble High Court (Delhi) in the case of Pioneer India Electronics (P) Ltd. v. Union of India reported in 2014 (301) E.L.T. 59 (Del.). In respect of the refund claim of other appellant Shree Namolar International P Ltd., Learned Cou....
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....2008, SAD on Customs @ 4% has been levied on all imports by the Budget 2006-07. As no Central Sales Tax or VAT is levied on imports, the levy of SAD was intended to create a level playing field for domestic goods vis-a-vis imports. A manufacture of excisable goods is permitted to utilise the SAD paid on imported goods as a credit against its excise duty liability for which SAD is not a cost for a manufacturer and as such does not operate as a countervailing tax. However, such credit was not available to a service provider or to the traders. An importer - traders who imports and sells goods in India upon payment of CST/VAT had to first pay SAD, and then CST/VAT on sale of the imported goods. (ii) It was felt that for a trader, rather 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. ....
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....urisdiction over the whole territory of India, Bombay Zonal Bench being a bench for the purpose of sitting of CESTAT, it would be inappropriate to delve into the intricacies of the issue in view of the fact that when Article - 227 was drafted, conception of National Tribunals and Article - 323 A & B were not in existence for which Tribunals, in Article - 227 would mean to read State Tribunals, to be subjected to the superintendence and control of jurisdictional High Court. Further five Members Bench of this Tribunal, in the case of Atma Steel Pvt. Ltd. & Others Vs. Collector of Central Excise, Chandigarh and others reported in [RLT (LB-CEGAT)-87] had held as follows. "70. We also feel that as a Tribunal, working on all-India 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 ....
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.... such refund is designed as an exemption clause and not as a rebate or refund of excess payment. As found from the para 35 of the judgment of Hon'ble Bombay High Court in CMC Info System Ltd. case, exemption flows from the power to exempt and refund flows from the power to grant such refund and makes it admissible. The word 'exemption' in its common parlance indicates "the act of being free from an obligation or liability imposed". Therefore, purpose of this exemption notification is not to refund the tax but to exempt from payment of tax or duty which was not due to be paid but was collected to meet certain contingency. The right to avail such exemption from payment of duty would accrue upon sale of the imported goods 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 d....