Madhu Mohan Damodhar ORDER
1. The facts of the case are that appellant had filed a refund claim in terms of Notification No. 102/2007-Cus. : MANU/CUST/0175/2007 dt. 14.09.2007 as amended for refund of an amount of Rs. 7,82,617/- claimed by them to have been paid as 4% of Special Additional Duty of Customs. Original authority rejected the claim for non-fulfilment of certain conditions of the notification, inter alia, on three grounds namely (1) C.A. certificate is without abstract and correlation sheet and that they had not submitted the appointment letter of C.A. and VAT/CST returns were also not submitted. (2) Sales invoices did not have mandatory endorsement as required in condition No. 2(b) of the notification and (3) since they have claimed Sales Tax/VAT exemption notification for sale of goods in U.P. State, condition No. 2(d) of the notification is not fulfilled. On appeal, the lower appellate authority vide impugned order dt. 25.02.2016 held that the rejection on the first grounds is not sustainable, however, upheld the rejection of refund on the third ground. Hence this appeal.
2. On 25.07.2017 when the matter came up for hearing, on behalf of appellant, Ld. Advocate Shri Mudimannan submits that the issue in dispute is covered by this Tribunal decision in Final Order Nos. 40889-40898/2017 dt. 2.6.2017.
3. On the other hand, Ld. A.R. supports the adjudication.
4. Heard both sides and have gone through the facts. We find that the issue involved in this appeal has been addressed in the aforesaid Tribunal decision cited by the ld. Advocate. The relevant portion of the decision is reproduced below for ready reference:-
"6.9 The judgment of the Hon'ble Supreme Court in the case of Vazir Sultan Tobacco Co. Ltd. (supra) has been followed in a number of subsequent decisions, e.g. In re Commissioner of Central Excise Vs. Prakash Pipes MANU/SC/1691/1997 : 1997 (74) ELT 18 (SC), Union of India Vs. Nande Printers MANU/SC/0030/2001 : 2001 (127) ELT 645 (SC) and Peekay Rolling Mills Vs. Asst. Commissioner MANU/SC/1447/2007 : 2009 (13) STR 305 (SC).
6.10 Even going by the intention of the Legislature, discussed in paragraphs above, while it was intended to level playing field to the indigenous manufacturers, there certainly was no intention to cause double jeopardy to any importer. When goods imported are otherwise, not fully exempted from VAT/sales tax, non-refund of 4% SAD paid on the concerned importers at the stage of import of these goods would amount to unintended taxation and uncalled for discrimination against the importer for no fault of theirs.
7. In view of the discussion herein above and also following the ratios laid down by the Hon'ble Supreme Court in Vazir Sultan Tobacco Co. Ltd. and subsequent judgments cited supra and also the ratio of the Tribunal in Gazal Overseas (supra), the appeals filed by the appellants above succeed. It is held that the appellant have discharged appropriate sales tax/VAT for the sale of the goods imported by them. As such the refund claimed by them under Notification No. 102/2007-Cus. : MANU/CUST/0175/2007 cannot be denied to them, as long as the appellants are able to establish that nil VAT/Sales Tax was required to be discharged on the impugned goods. With regard to the mismatch of documents alleged, we find on perusal of records that the adjudicating authority has correlated VAT/Sales Tax with the goods sold and the Chartered Accountant certificate. The refund has been rejected as VAT/Sales Tax/CST is not paid in the invoices.
8. In the result, the impugned orders are set aside and the appeals are allowed with consequential relief, if any, as per law. Following the ratio of the above Tribunal decision, we unequivocally hold that for the purposes of Condition No. 2(d) of the notification No. 102/2007 : MANU/CUST/0175/2007 Sales Tax has been paid at appropriate rate for the purpose of condition No. 2(d) and Nil rate of Sales Tax/VAT, CST is to be considered as appropriate duty. In the event, the impugned order cannot be sustained and is therefore set aside for which consequence, the appeal is therefore allowed with consequential benefits, if any, as per law."
5. Following the ratio of the above Tribunal decision, we unequivocally hold that for the purposes of Condition No. 2(d) of the notification No. 102/2007 : MANU/CUST/0175/2007 Sales Tax has been paid at appropriate rate for the purpose of condition No. 2(d) and Nil rate of Sales Tax/VAT, CST is to be considered as appropriate duty. In the event, the impugned order cannot be sustained and is therefore set aside for which consequence, the appeal is therefore allowed with consequential benefits, if any, as per law.
(Operative part of the order pronounced in court)
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