2022 (11) TMI 110

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....l backdrop of the case is that appellant had paid 4% SAD on importation of Timber Round Logs. Later on appellant filed refund claim for 4% SAD amounting to Rs. 1,51,90,212/- on the basis of exemption allowed under Notification No. 102/2007-Cus dated 14.09.2007. The said notification stipulates that an importer shall file a claim of Refund of SAD with the jurisdictional customs officer before the expiry of one year from the date of payment of SAD. It was alleged that the refund claim was filed by the Appellant after the expiry of one year and hence the claim appeared to be hit by limitation. Show cause notice dated 06.08.2019 was issued to the Appellant proposing rejection of the refund claim. In adjudication, the Assistant Commissioner vide....

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....e under heading 4407 and therefore, refund was not permissible. Due to circular, the Appellant had no option but to wait the outcome of the final decision on the issue pending before the Hon'ble Supreme court. The Hon'ble Supreme Court upheld the stand of Appellant on 24.04.2018 and therefore, the Appellant rightly filed the refund on 17.01.2018 and therefore, the Appellant filed the refund on 17.01.2019 within a period of one year from the date of decision of the Hon'ble Supreme Court. 4. He submits that pursuant to the Board circular, the department stopped accepting the refund claims in a case where the importers paid SAD on round logs and claimed refund of VAT paid on subsequent sale of sawn timber. On one hand, the department did not ....

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....e also relies upon the following judgments in support of his contention: (i) Sony India Pvt. Limited vs. Commissioner of Customs- 2014(304) ELT 660 (Del) (ii) Commissioner of Customs (Import) vs. Gulati Sales Corporation - 2018 (360) ELT 277 (Del.) (iii) Utkal Lumbers Pvt. Ltd. vs. Union of India - 2017(345) ELT 101 (Guj.) (iv) Singla Trading Co. vs. Commissioner of Customs, New Delhi - 2012(285) ELT 256 (Tri. Del.) 8. Shri R P Parekh, learned Superintendent, AR appearing on behalf of the revenue reiterates the findings of the impugned order-in-appeal. He placed reliance on the following judgments:- (i) CC, Hyderabad Vs. Surya Telecom Pvt. Ltd.- 2019 (370) ELT 338 (ii) MS Metals Vs. CC (Prev.), Patna - 2017(345) ELT 113 (Tri. K....

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.... paid. We noticed that since the entire issue was sub-judice, Appellant had not filed the refund claim for subsequent imports. However, in view of the order passed by the Hon'ble Supreme Court, the Appellant had filed the refund claim on 17.01.2019 for the goods imported during the period between 29.12.2008 to 03.03.2011. Clearly, in the present case, the eligibility of refund arise only after the issue attained finality. The Hon'ble Supreme Court upheld the stand of Appellant on 24.04.2018 and appellant rightly filed the refund claim on 17.01.2009 within the period of one year from the date of decision of the Hon'ble Supreme Court. 10. Further, from the provisions of Section 27(1B) (C), it is clear that refund claim can be filed in conseq....

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....s per the said Notification, refund of SAD is available only in case the imported goods are subsequently sold on payment of VAT, without carrying out any process. However, at the time of claiming refund of 4% SAD, these importers have manipulated the facts by showing that goods sold were imported timber logs only and not 'sawn' or 'cut logs'. In terms of the classification of the First Schedule to Customs Tariff Act, 1975, round logs/round squares are classified under the heading 4403 whereas the 'sawn' woods are classified separately under heading 4407. Thus, there is distinct classification for the imported and the final products that are sold in the market on which VAT is paid. Hence, since the goods imported and subsequently sold were d....