TaxTMI 
TaxTMI 
2024 (11) TMI 742
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....nents, parts, and equipment from local as well as foreign vendors. While importing the parts/equipment, the goods were cleared by paying the additional duty of customs in terms of section 3(5) of the customs Tariff Act, 1975. Further, the appellants followed customized methods for sales. These include selling the parts of the Micro Irrigation Systems as imported without any installation or selling the imported goods with installation services. In cases where the installation services are included, the concerned charges for the same are mentioned in the invoice separately. It is the case of the department that appellants are not eligible for a refund of 4% SAD as the goods imported via Bill of Entry were parts of the Micro Irrigation System, however, they were sold as Micro Irrigation System without noticing the fact that the parts are sold separately, and installation charges are separately indicated in the invoice. Thus, according to the department, the imported goods are not sold as such (in the form of parts) the basic condition of the Notification No. 102/2007-Cus dated 14.09.2007 has not been fulfilled. 2. Shri Manish Jain learned counsel appearing on behalf of the appellan....
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....ter 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." 9. The benefit of the Notification is available on merits to the appellant because the goods imported have already been sold into the domestic market on payment of applicable VAT/Sales tax, which is nil in the present case. 10. The appellants have fulfilled all the requirements of the concerned notification including the payment of the duties on importation, filing of the claim within one year from the date of payment of the additional duty, paying appropriate VAT/Sales Tax at the time of Sale of the goods and submitted all the documents required to be submitted. 11. Further, the concerned notifica....
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....rts of Drip Irrigation Systems and filed necessary bills of entry. The said parts were sold as such without doing any value addition. The said parts were sold under commercial invoice which reflected the same description which is shown in the Bill of Entry. 19. As per the Notification No. (GHN-4) VAT-2013-S.5 (2) (37) - TH dated 01.04.2013, sale of "Micro Irrigation System Equipment" is exempted from payment of VAT in the state of Gujarat. However, Notification 102/2007-Cus dated 14.09.2007 allows the refund of SAD subject to the condition that the importer pays appropriate Sales tax/VAT. Reliance in this regard is placed on the following decisions: * Gazal Overseas v. C.C., New Delhi, 2016 (332) E.L.T. 767 * M/s. ABS Ltd. Vs. C.C.E., Jaipur, 2017 (6) TMI 360- CESTAT Ahmedabad 20. In the present case, the appropriate Sales Tax/VAT being NIL vide the above-referred notification, the Appellants cannot be said to have violated the said condition of the notification inasmuch as it cannot be said that they have not paid appropriate Sales/VAT Thus, it is submitted that as long as the appropriate VAT/Sales tax was paid, the SAD refund was admissible eve....
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....SCNs to re-adjudicate these refund applications, merely because of a change in opinion, is against the principle of res judicata. 27. It is submitted that the Refund of Rs. 22,83,917 was already sanctioned by the 010 No. DC/13/ICD/Dashrath/Refund/15-16 dated 17.08.2015 following OLA No. 437 to 457/Cus/Commr(A)/AHD dated 05.11.2013 and 158-161/2014/CUS/Commr(A)/AHD dated 09.04.2014. Thus, the abovementioned amount of refund cannot be recovered without challenging the OIA. Since said OIAs have been accepted by department, question of recovery of said refund claim by way of SCN is not legally sustainable and in violation of the principle of rex-judicata. (Refer Page 286 of additional paper book of Appeal No. C/10306/2020) 28. Further, it is submitted that in cases of recovery of SAD, interest, and penalty on SAD are not applicable. Reliance in this regard is placed on the following decisions: * Mahindra & Mahindra Limited v. Union of India, 2022 (10) TMI 212 * Chirpal Poly Films Ltd. Vs. Commissioner of Customs, Ahmedabad, Final Order No. 11628-11630/2024 dated 23.07.2024 3. On the other hand, Shri Girish Nair learned Assistant Commissioner....
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.... Delhi Steel Processing Ltd. V. C.C., Kandla - 2012 (285) E.L.T. 410 * C.C. (Sea-Export), Chennai v. Shri Ram Impex India Ltd. -2014 (300) E.L.T. 126 * M/s Orange Overseas Pvt. Ltd. v. C.C.E., New Delhi - 2016 (2) TMI 206 * C.C., Mangalore v. Hindustan Petroleum Corp. Ltd. - 2006 (202) E.L.T. 335 * Equinox Solution Ltd. v. C.C., Ahmedabad - 2017 (357) E.L.T. 1041 * Shanti Enterprises v. C.C., New Delhi 2016 (343) E.L.T. 446 * Steel Authority of India Ltd. v. C.C.Ex., Raipur - 2015 (325) E.L.T. 901 * C.C., Kandla v. PMC Project India Pvt. Ltd. - 2019 (370) E.L.T. 1429 * C.C., JNCH, Nhava Sheva v. Palava Dwellers Pvt. Ltd. - 2019 (370) E.L.T. 1543 * C.C., Kandla v. Luna Infradrop Pvt. Ltd. - 2016 (333) E.L.T. 351 * Lodha Healthy Construction & Dev Pvt. Ltd. v. C.C.Ex. C. & S.T., Hyderabad 2017 (358) E.L.T. 471 * State of Rajasthan v. Rajasthan Chemists Assn. 2006 (202) E.L.T. 217 * C.C., New Delhi v. Reliance Communications Infra. Ltd. 2012 (279) E.L.T. 85 * B.S.N.L v. Union of India 2006 (2) S.T.R. 161 * Netafim Irrigation v. C.C. Ahmedabad CESTAT Final Order....
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....ssioning of power plant the refund claimed of duty paid as 4% SAD was allowed. 4.4 Considering, the above judgments the appellant's case being on better footing the refund is admissible under Notification No. 102/2007-CUS. As regard the contention of the department that the appellant have not paid the VAT as it attracts NIL rate of VAT. We find that this has issue been decided in number of judgments that even though the NIL rate of VAT attracts on the imported goods. The same is treated as tax paid and the condition of Notification no. 102/2007/-CUS stands complied with. In this regard following decisions support the appellant's case. In the case of Gazal Overseas this tribunal dealing with the case of goods attracts NIL rate of VAT passed the following decision. "Appeals have been filed against order-in-appeal dated 28.05.2009 in terms of which the appellants were denied the refund of 4% of additional duty of Customs (SAD) on the ground that the appellants did not pay any sales tax/VAT on the goods, namely footwear. The appellants have contended that they imported footwear and paid sales tax/VAT at the appropriate rate which was Nil in the case of the said goods and....
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.... at the rate of 4% in terms of Customs notification no. 19/2006 dated 01.03.2006. However, at the time supply of these goods to DMRCL, even though tax invoice was issued, no VAT was charged on these supplies in terms of notification dated 06.10.2010 issued by Rajasthan Government exempting the goods from payment of VAT. The dispute is whether insuch circumstances, the appellant will be eligible for payment of refund of SAD, by considering the NIL rate of VAT as appropriate payment of VAT. 9. We find that an identical issue came up before the Tribunal in the case of Gazal Overseas (Supra) in which the Tribunal allowed payment on refund of SAD. We reproduce below the relevant para of the decision : "4. We have considered the contention of Ld. DR and also perused the refund papers. Notification No. 102/2007, dated 14.09.2007 as amended allowed refund of SAD subject to the condition that "the importer shall pay appropriate sales tax or VAT, as the case may be." In the present case, the appropriate sales tax or VAT being NIL the appellants cannot be said to have violated the said conditions of the said notification inasmuch as it cannot be said that they have not paid ....