TaxTMI 
TaxTMI 
2024 (5) TMI 632
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....They submitted that they have not required to pay SWS since the basic customs duty payable itself is nil. However, Commissioner (Appeals) has dismissed their appeal. Being aggrieved, the appellant is before the Tribunal. 2. Learned Counsel appearing on behalf of the appellant submits that the issue is no more res integra. This Bench in the case of Emami Agro Tech Ltd., Vs CC, Vijayawada and CC, Visakhapatnam [2024 (3) TMI 86 - Cestat- Hyd] has held that SWS is not payable when the goods are cleared by using MEIS scrips in terms of Notification No. 24/2015-Customs. He further submits that similar view has been taken in the following cases: i. Emami Agro Tech Ltd., Vs Union of India - Writ Petition No. 1447 of 2021 judgment dated 27.09.2022 of the Bombay High Court ii. Reliance Industries Ltd., Vs CC, Import Final Order No. A/85123- 85219/2024 dated 27.02.2024 iii. Emami Agro Tech Ltd., Vs CC (Port), Kolkata Final Order No. A/76944- 77103/2023 dated 22.09.2023 3. He submits that in all these cases, it is been held that when there is no liability to pay BCD, there cannot be any provision to calculate SWS which is based on the percentage of BCD. Accordingly, he prays that the a....
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.... categorically that the expression 'collection' in the context of tax laws would mean physical realization of tax, whereas, in the instant case, the Commissioner (Appeals) has himself accepted in the Impugned Order that no money representing BCD goes to the exchequer under the said notifications. Meaning, thereby, that the context of physical realization of tax is clearly not met and the debit of BCD to the scrip is at best a notional collection of tax, when the said notifications are read in entirety. Had the debit to scrip been equivalent to cash payment or any other admissible mode of payment, there was no need to grant any exemption as duty levied would have been discharged in full using such scrips. The statutory provision is quite clear that power to exempt any duty of Customs is within Section 25 only and thus, once BCD is exempted in terms of notification issued under Sec 25, it would tantamount to exemption from duty and no other interpretation is possible. 40. Similar view has also been taken by various High Courts including the jurisdictional High Court, while considering the condition of debit to the duty credit scrips as prevalent in the notifications operationalizi....
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....e Court after considering the Circular dated 01.02.2022, decided the issue in favour of the Appellant vide its order dated 27.09.2022. No stay has been brought to our notice, against the said order of the Hon'ble Bombay High Court. On the contrary, pursuant to the said order, refund of SWS amount has also been sanctioned to the Appellant vide refund sanction order dated 13.04.2022. The grievance of the revenue before us is that an earlier Circular dated 10.01.2020, which was specific to the issue at hand and which has not been rescinded was not considered. We find that both the Circulars deal with levy and collection of SWS, while the earlier one is oppressive and provides for payment of SWS in case of imports against the MEIS/SEIS Scrip, the latter Circular contemplates that the amount of SWS payable would be "NIL", where the BCD which forms the basis for computation of SWS is "Zero" even though SWS has not been exempted. The latter Circular does not contemplate that its operation is limited to situations not covered by the earlier circular. It is settled by the Hon'ble Supreme Court in the case of Suchitra Components Ltd reported in [2007 (208) ELT 321] that a beneficial circ....
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....een examined. Social Welfare Surcharge (SWS) is levied and collected, as a duty of customs, vide Section 110 of the Finance Act, 2018 (13 of 2018) and is calculated at the rate of 10 per cent. on the aggregate of duties, taxes and cesses which are levied and collected by the Central Government as a duty of customs on goods imported into India. 3. In this regard, it may be noted that at present SWS applies at the rate of 10% of the aggregate of customs duties payable on import of goods and not on the value of imported goods. If aggregate customs duty payable is zero on account of an exemption, the SWS shall be computed as 10% of value equal to 'Nil' (as aggregate amount of customs duties payable is zero). Law does not require computation of SWS on a notional customs duty calculated. 4. Thus, it is clarified that the amount of Social Welfare Surcharge payable would be 'Nil' in cases where the aggregate of customs duties (which form the base for computation of SWS) is zero even though SWS has not been exempted at tariff rate where applicable aggregate of duties of customs is zero. 9. After this, the Bench has relied on the case law of La Tim Metal & Industries Lt....