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2013 (11) TMI 994 - AT - CustomsRefund of Special Additional Duty of Customs - Notification No. 102/2007-Cus dated 14.9.2007 and Notification No.29/2010-Cus. dated 27.10.2010 - Exemption from SAD for all pre packed goods intended for retail sale - 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:- this is not a case where the importer is seeking change in assessment made at the time of importation of goods. Only in such a situation, the decision of the Apex Court in Priya Blue Industries (2004 (9) TMI 105 - SUPREME COURT OF INDIA) would apply. Even in such cases, the Hon’ble Delhi High Court has clarified that the said decision would apply only in a case where there was a dispute between the Department and the importer at the time of importation of the goods and the matter was adjudicated either through assessment of BE or through further proceedings. Refund is not claimed under section 27 of the Customs Act. The appellant is not requesting for change of the assessment made at the time of importation. For grant of refund of SAD as per notification 102/07-Cus re-assessment of Bills of Entries are not prescribed under the notification - In the case of Central Excise duty there is a consequence in paying duty on exempted goods because the 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 - no reason to deny refund under Notification No. 102/2007-Cus if the appellant satisfies the conditions therein - Decided against Revenue.
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