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Sino Import & Exports Pvt. Ltd. Vs. Commissioner of Customs (Imports), Chennai-IV - (Customs, Excise and Service Tax Appellate Tribunal) (25 Jul 2017)

If Appellant has discharged appropriate Sales Tax/VAT for sale of goods imported by them, than refund claimed by them cannot be denied



Facts of case are that, Appellant had filed a refund claim in terms of Notification No. 102/2007-Cus.: MANU/CUST/0175/2007 dated 14th September, 2007 as amended for refund of an amount of Rs. 7,82,617/- claimed by them that have been paid as 4% of Special Additional Duty of Customs. Original authority rejected claim for non-fulfilment of certain conditions of notification, 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 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 notification is not fulfilled. On appeal, Lower appellate authority vide impugned order held that, rejection on first grounds is not sustainable, however, upheld rejection of refund on third ground. Hence, present appeal.

Issue involved in present appeal has been addressed in Tribunal decision cited by learned Advocate. Judgment of Supreme Court in case of Vazir Sultan Tobacco Co. Ltd. has been followed in a number of subsequent decisions, e.g. In re Commissioner of Central Excise Vs. Prakash Pipes, Union of India Vs. Nande Printers and Peekay Rolling Mills Vs. Asst. Commissioner. Even going by intention of Legislature, while it was intended to level playing field to 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 concerned importers at the stage of import of these goods would amount to unintended taxation and uncalled for discrimination against importer for no fault of theirs. It is held that, Appellant have discharged appropriate sales tax/VAT for sale of goods imported by them. As such 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.

Following ratio of Tribunal decision, present Tribunal held that, for purposes of Condition No. 2(d) of Notification No. 102/2007: MANU/CUST/0175/2007, Sales Tax has been paid at appropriate rate for purpose of Condition No. 2(d) and Nil rate of Sales Tax/VAT, CST is to be considered as appropriate duty. Impugned order cannot be sustained and is therefore set aside for which consequence, the appeal is therefore allowed.

Relevant : Vazir Sultan Tobacco Co. Ltd., re Commissioner of Central Excise Vs. Prakash Pipes MANU/SC/1691/1997: 1997 (74) ELT 18 (SC), Union of India Vs. Nandi Printers MANU/SC/0030/2001: 2001 (127) ELT 645 (SC), Peekay Rolling Mills Vs. Asst. Commissioner MANU/SC/1447/2007: 2009 (13) STR 305 (SC)


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