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2014 (1) TMI 1120 - AT - CustomsImport of mobile phones - Mis declaration of goods - Under valuation of goods - Held that:- whatever special customs duty (SAD) was required to be paid on the import of the goods, was refundable to the assessee at the time of sale of the mobile phones upon payment of VAT. In fact, we find that confirmation of SAD relates to previous 27 consignments, which were cleared by the Customs authorities and were subsequently sold by the assessee in the open market and the SAD paid by the importer at the time of clearance of those 27 consignments stand refunded to the said assessee - even if higher SAD would have been paid by them at the time of import of earlier 27 consignments, the same would have been refunded to the importer. Revenue has not initiated proceedings against the assessee in respect of SAD already refunded to them. As such, we are of the view that differential SAD now being confirmed against the assessee, by way of impugned order, is also eligible to be refunded to them, thus making the entire situation revenue neutral. As regards the balance amount of duty, falling under the category of education cess and higher education cess, totally amounting to ₹ 16.32 lakhs, we find that the appellants bank guarantee of ₹ 13.98 lakhs is sufficient to cover the said amount. We accordingly direct the appellant to keep the said bank guarantee alive during the pendency of the appeal subject to which balance amount of duty and penalties imposed upon all the applicants shall stand waived and its recovery stayed during pendency of the appeal - Conditional stay granted.
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