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2019 (1) TMI 984 - HC - CustomsRefund of SAD - rejection on the ground that what was imported by the appellant was “prime quality pre-painted aluminium zinc alloy coated steel sheet in coil form”, whereas what was sold by the appellant as works contract service was material for laying of proflex roof, which fell under different classification - it was thus alleged that condition of N/N. 102/2007-Cus. dated 14.09.2007 that the goods imported were sold on payment of VAT/sales tax was not satisfied. Held that:- It is apparent that an anomaly has arisen in two different judgments of the Tribunal on identical facts, on account of the appeals being bifurcated on the basis of pecuniary jurisdiction. In the opinion of this court, when all the appeals arise out of a common Order-in- Appeal and the facts are also identical, for the purpose of uniformity a similar order is required to be passed in all the appeals. When in one group of appeals arising out of the identical facts, the appellant has been permitted to claim the benefit of refund of 4% SAD on goods sold “as such”, the appellant cannot be denied the similar benefit in the other group of appeals. Under the circumstances, the anomaly that has arisen on account of the aforesaid circumstances needs to be rectified. The technical plea that such an issue was not raised before the Single Member Bench of the Tribunal would not come in the way of this court in rendering substantial justice in the present case. The question is answered in the affirmative, viz., that the appellant is entitled to similar relief as granted by the Division Bench of the Tribunal in the group of appeals arising out of the common order of the Commissioner (Appeals) - appeal allowed - matter is restored to the file of the adjudicating authority to ascertain the quantum of “as such sale” of the imported material sold in coil or sheet form, which alone can be considered for refund of 4% SAD paid at the time of import.
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