2020 (2) TMI 200 - AT - Customs

Refund of SAD - Benefit of N/N. 102/2007-Cus dt. 14/09/2007 - HELD THAT - This issue is no more res integra and has been settled by various decisions of the Tribunal including the decision of this Tribunal in the appellant s own case VALLABHDAS AND CO. BALAKRISHNA SALES CORPORATION VERSUS COMMISSIONER OF CUSTOMS COCHIN 2017 (5) TMI 1371 - CESTAT BANGALORE wherein the Tribunal has allowed all the appeals by relying upon the earlier decisions of the Tribunal. Besides this both the authorities have wrongly relied upon the decision of the Apex Court which was in respect of N/N. 34/1998-Cus. dated 13.06.1998. Further the said Notification 34/1998 has been subsequently rescinded by N/N. 58/1998-Cus. dated 01.08.1998. Therefore reliance by both the parties on a Notification which has been rescinded is not tenable in law. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Refund claim rejection based on non-payment of VAT, reliance on Apex Court decision, applicability of Notification No. 102/2007-Cus, interpretation of appropriate sales tax/VAT, previous Tribunal decisions.

Analysis:
The appellant imported Rock Phosphate and claimed a refund of Special Additional Duty (SAD) paid. The Assistant Commissioner rejected the claim citing non-acceptance of Tribunal decision and an Apex Court ruling on Notification No. 34/1998-Cus. The Commissioner(Appeals) upheld the rejection. The appellant argued that a previous Tribunal order favored their refund claim and that the Apex Court decision was based on a rescinded notification. The AR defended the rejection.

The Tribunal found the issue settled by previous decisions, including the appellant's own case where the Tribunal allowed similar appeals. The Tribunal noted that reliance on a rescinded notification was not valid. Referring to the appellant's earlier case, the Tribunal highlighted that as long as appropriate sales tax/VAT was paid, SAD refund was admissible, even if the tax rate was lower or nil. The Tribunal held that a nil rate of VAT under the Kerala Finance Act 2001 could be considered appropriate sales tax/VAT, satisfying the conditions of Notification No. 102/2007, thus entitling the appellant to the refund.

In conclusion, the Tribunal set aside the impugned order, allowing the appeal in favor of the appellant based on the precedent established in their own case and the interpretation of the relevant notification and tax payment conditions. The Tribunal's decision aligned with the earlier Tribunal rulings and clarified the eligibility criteria for SAD refund under the specific notification. The judgment emphasized the importance of correctly applying legal provisions and precedent to determine refund entitlement, ultimately granting relief to the appellant.