2025 (9) TMI 1603

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....-20 Dated 21.01.2020 2015-2016 3,17,409/- 3. E/10189/2020 VAD-EXCUS-001-APP-517-520/2019-20 Dated 21.01.2020 2013-2014 10,88,938/- 4. E/10190/2020 VAD-EXCUS-001-APP-517-520/2019-20 Dated 21.01.2020 2013-2014 9,63,415/- 5. E/10191/2020 VAD-EXCUS-001-APP-517-520/2019-20 Dated 21.01.2020 2015-2016 to 2016-2017 78,641/- 6. E/10270/2020 VAD-EXCUS-001-APP-528/2019-20 Dated 05.02.2020 2016-2017 3,84,144/- 7. E/10465/2020 VAD-EXCUS-001-APP-30/2020-21 Dated 22.06.2020 2013-2014 18,685/ Since the issue involved in all these appeals is the same i.e. whether refund claims of CVD and SAD, filed by the appellant under Section 142(3) and 142(6)(a) of the CGST Act 2017 were rightly rejected by learned Commissioner (Appeals) in terms of Rule 9(1)(b) of Cenvat Credit Rules, 2004 and Section 142(8)(a) of the CGST Act, 2017, hence, all the above mentioned appeals are taken up together for disposal. 2. The brief facts of the case (in Appeal No. E/10188/2020) are that the appellant were importing excisable goods under Advance license. On being applied for redemption of Advance License, the appellant, vide deficiency l....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the Appellant Company has imported duty free Crude Quercetin under different Bills of Entry during the period 2015-2016 to 2016-2017, involving a total of seven appeals listed above. Due to unavoidable circumstances, exports could not be carried out against the Advance Licenses under which goods have been imported and therefore, the Appellant decided to close these Licenses. The Appellant Company applied to the Jt. Director General of Foreign Trade, Vadodara and requested to allow the surrender of these Licenses. Pursuant to the application made by the Appellant Company, the Joint DGFT issued a deficiency memo and informed the Appellant to pay the BCD alongwith CVD, SAD and Interest to regularize the Advance Authorization/License and as a pre-condition to close this License. However, the Appellant Company had paid/reversed the duties as per the 'deficiency memo' and obtained the NOC from the DGFT post GST Regime. Neither the DGFT nor the Customs Authorities ever issued a Show Cause Notice under the relevant statutes to levy any duty, Interest or Penalty for the purported non-compliance of the Advance Authorization/License but it was only at the behest of the Appellant that the said....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ppellant also argued that Appellate Authority should not have rejected the refund claim on the ground that Jt. DGFT has issued a 'deficiency memo' and therefore, refund in cash is not admissible, ignoring the Circular No. 334/1/2012-TRU dated 01.06.2012 which is for the recovery of duty under Section 28AA of the Customs Act, but the said Circular categorically clarified that unless the DGFT initiates action for cancellation of any instruction, the matter may be decided only after the instrument has been cancelled by the DGFT. In the present case, the License was closed on payment of CVD, SAD and Interest and no such proceedings were initiated by the DGFT. In that view of the matter, the authority had no jurisdiction to even go beyond the scope of the power of the DGFT. 4. The learned AR for the Revenue reiterated the findings in the impugned Orders-in-Appeal and submitted that the claim of refund of the appellant was rejected mainly on the ground that the CVD and SAD were paid by them under 'deficiency memo' issued by Foreign Trade Development Officer and the instant refund claims are not covered under Section 142(3) of the CGST Act, 2017 and are liable to rejected in terms of R....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e Tax, Vadodara-II, (Excise Appeal No. 10409 of 2020), this Tribunal has held that as regards the issue whether the appellant claim of CVD & SAD is hit by Rule 9 (1) (b) or (bb) of Cenvat Credit Rules, 2004, firstly there is no demand notice in respect of CVD and SAD which was paid by the appellants on their own and also no adjudication as regards the suppression of facts, therefore, in absence of any charge by way of Show Cause Notice or adjudication thereof, the allegation of suppression of facts only to invoke Rule 9 (1) (b) or (bb) of Cenvat Credit Rules, 2004 is on assumption and presumption which cannot be accepted. Moreover, the payment of CVD and SAD is not towards the non-payment of duty by suppression of fact in the present case. The Advance License is on record and since there was excess import as compared to the eligibility under Advance License, the appellant has discharged the duty of CVD and SAD suo-moto for which no offence was made out by the department. Therefore, in these facts, no suppression of fact is involved. Consequently, penal provision under Rule 9 (1) (b) or (bb) shall also not apply. I agree with the principles laid-down in above decided cases and th....