AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 483
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....s have been filed in the same month, the same cannot be rejected based on the Circulars issued by the Board in terms of order of this Tribunal in the cases of Mitutoyo South Asia Pvt. Ltd vs. CC2015 (322) ELT 523 (Tri.-Del.), Devki Nandan J.Gupta vs. CC-2015 (318) ELT 167 (Tri.) and CC vs. Kevin Impex Pvt. Limited-2016 (339) ELT 117 (Tri.-Bang.). 4. He further submits that refund claims have been rejected on the ground that the refund claims have been filed beyond one year after the payment of SAD. He relied on the decision of the Hon'ble Delhi High Court in the case of Sony India vs. CC-2014 (304) ELT 660 (Del.). 5. It is his submission that this Tribunal in the case of M/s. Auto Dynamic Corporation, M/s. Okaya Power Pvt.Ltd., M/s. S.G. International, M/s. Sunnox International vs. CC, Ludhiana-2018 (12) TMI 1194 has held that where there are contrary views of Hon'ble High Courts, the Tribunal is at liberty to decide the issue ignoring the decisions of the High Court on merits. Therefore, relying on the earlier decisions in the cases of Gaio Mall and Sons vs. CC, Ludhiana2018 (10) TMI 941- CESTAT, Chandigarh, M/s. Goyal Impex & Industries Limited vs.....
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.... the submissions of both sides, I find that sole issue is whether Notification No.102/2007-Cus dated 14.9.2007 as amended by Notification No.93/2008-Cus dated 1.8.2008, the time limit prescribed for filing refund claim is one year from the date of payment of SAD or not ? 11. For better appreciation of facts,the legal provisions relevant to decide the issue is as under and are incorporated as under:- 25. Power to grant exemption from duty. - (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. (2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from payment of duty, for reasons to be stated in such order, any goods, of strategic or secret nature, or for charitable purpose, on which duty is leviable. (2A) The Central Government may, if it ....
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....ent, decree or order of any Court, tribunal or other authority, no suit or other proceedings in respect of such mineral oils shall be maintained or continued in any Court, tribunal or other authority. (8) Notwithstanding the exemption provided under sub-section (7), no refund of duties of customs paid in respect of the mineral oils specified therein shall be made." 12. Notification No.102/2007-Cusdated 14.9.2007 reads as under: "Exemption from special CVD to all goods imported for subsequent sale when VAT/Sales Tax paid by importer. - In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following con....
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....at the time of importation of the goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said additional duty of customs paid on the 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 the refund claim : (i) document evidencing payment of the 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. ....
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....he same nature as, or similar to those, used in the production or manufacture of such article, it may, by notification in the Official Gazette, direct that such imported article shall, in addition, be liable to an additional duty representing such portion of the excise duty leviable on such raw materials, components and ingredients as, in either case, may be determined by rules made by the Central Government in this behalf. (4) In making any rules for the purposes of sub-section (3), the Central Government shall have regard to the average quantum of the excise duty payable on the raw materials, components or ingredients used in the production or manufacture of such like article. (5) The duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. (6) The provisions of the Customs Act, 1962 and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act." 14. After going through....
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.... sets of circumstances. 17. The notification issued by the Central Government in exercise of the powers conferred by Section 25(1) of the Act exempts the articles enumerated in the Table annexed when imported into India from payment of duty under the Act. The language used in the notification is plain and unambiguous. Therefore, we are required to consider the same in their ordinary sense. A construction which permits one to take advantage of one's own wrong or to impair one's own objections under a Statute should be disregarded. The interpretation should as far as possible be beneficial in the sense that it should suppress the mischief and advance the remedy without doing violence to the language. From the wording of the above exemption notification, it is clear that the benefit of the exemption envisaged is for those goods that are imported." 15. As per the said observations made by the Hon'ble Apex Court, the exemption notifications in question are to be interpreted liberally. Notification No.93/2008-Cus prescribes that exemption from special CVD in specific is not available without VAT/Sales tax is paid by the importer. Further mandates notifi....
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....d documents as required under clauses(e) of the notification, the refund claim shall be barred by limitation. 17. When the said notification is beneficial to the assessee by exercising of power under section 25(1) of Customs Act, 1962, the whole purpose of the exemption granted under Sec. 25 (1) of the Act shall be defeated. In case, the imported goods could not be sold by the importer within one year of the payment of SAD on payment of VAT/service tax, the importer is deprived to claim of the refund of SAD. The cause of action to claim refund of SAD does not arise as per Notification No.102/07-Cus dated 14.9.2007 and Notification No.93/08-Cus dated 1.8.2008. If the SAD and VAT/Sales tax paid on the imported goods, it will amount to double taxation on the said imported goods as condition 2(c) of the said notification bars the importer to file refund after clearance of goods after one year of the SAD. Once the intent of the Legislature is to refund the SAD on payment of VAT/Sales-Tax, the condition 2(c) of the Notification is against the intent of the Legislature. Asit is not the intent of legislature to tax double on the imported goods, the importer shall n....