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2014 (5) TMI 243 - CESTAT CHENNAIClaim under Exemption Notification – Penalty for non-claiming of Exemption - Operation of Double notifications - Whether an importer can be penalized for not having claimed exemption under Notification No. 29/2010-Cus at the time of importation by refusing to grant refund under Notification No. 102/2007-Cus, when both the notifications were in operation on the date of importation and date of claiming refund – Held that:- Judgment in CCE Vs. Narayan Polyplast [2004 (11) TMI 112 - SUPREME COURT OF INDIA] followed - The decisions of the courts are to the effect that an assessee cannot be forced to avail any particular exemption – In the case of Central Excise duty there is a consequence in paying duty on exempted goods because assessee will be able to pass on the duty incidence on the raw material and capital goods to the next stage by paying duty whereas such incidence cannot be passed on if the goods are exempted - Thus there is an adverse consequence to revenue when excise duty is paid on an exempted product. On 13-05-2005, the Legislature introduced the sub-section (1A) in section 5A of Central Excise Act, 1944 - But no such explanation has been inserted in section 25 of Customs Act, 1962 - Further in case of SAD, payment at the time of importation and claiming refund at a later point of time can cause financial disadvantage to the importer and no such consequence to Revenue - Therefore, appeals filed by the Revenue on the above grounds are not maintainable – Decided in favour of Revenue. Grant of Refund – Held That:- In respect of two Bills of Entries rejected by original adjudicating authority for the reason that the goods were imported through Sea Customs, Chennai but refund claim was filed before authorities in Air Customs Chennai - The Commissioner (Appeal) noted that the refund claims were not returned promptly by the authorities in Air Customs – Relying upon CCE Vs. AIA Engineering Ltd [2012 (4) TMI 515 - CESTAT AHMEDABAD] - If the respondent file claim before the appropriate authority the claim should be processed by excluding the period for which the claims remained with Air Customs Authorities – No reason found to interfere with the order of Commissioner (A) – Decided against Revenue.
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