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TMI Blog2013 (8) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... h appropriate customs duties in chiding additional duty of customs leviable thereof under Sub-section 5 of Section 3 of the Customs Tariff Act, 1975 (popularly known as SAD) was paid at the time of clearance. Subsequently appellants have claimed refund of SAD paid in terms of Notification No. 19/2006-Cus dated 1/03/2006 on the basis of exemption available under Notification No.102/2007-CUS dated 14/09/2007 which inter-alia, provided for refund of SAD subject to conditions laid down there-under. The refund claims stood sanctioned by the Adjudicating Authority of Customs House, Kandla. 3. Aggrieved by such sanctioning of refund, Revenue preferred appeals before the First Appellate Authority. The First Appellate Authority after considering the submissions made by the assessees and cross objections filed by them, came to the conclusion that the goods which are procured from SEZ by the appellants cannot be construed as an import and therefore refund of SAD does not arise, and coming to such a conclusion, set aside the orders in original and allowed the appeals filed by the department. 4. The ld. Counsel Shri V. K. Jain along with Ms. Dimple Gohil appeared on behalf of all the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioning in the SEZ area. He would rely upon the judgment of Hon'ble High Court in the case of ESSAR Steel [2010 (249) ELT 3 (Guj.)] for the proposition of understanding of Section 41 of SEZ Act and for the answer as to whether the said duty can be imposed under Customs Act or not. He also relied upon the judgment of Hon'ble Karnataka High Court in the case of Biocon Ltd. [2011 (267) ELT 28 (Kar.)] for the proposition that provisions of Customs Act do not envisage movement of goods from domestic tariff area to SEZ to be a taxable event and reverse would apply in this case. He would submit that the First Appellate Authority was correct in coming to the conclusion that the appellants are not eligible for refund of SAD paid by them. 6. We have considered the submissions made by both the sides and perused the records. 7. The issue involved in all these cases is whether the appellants are eligible for refund of additional duty of customs leviable under Section 3(5) of the Customs Tariff Act, 1975 which was paid at the time of clearance of goods from SEZ to DTA and also whether an assessee is eligible for refund of such duty paid by them on goods under Notification No.102/2007-Cus. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he movement of goods from SEZ to DTA considering the said goods as being imported. It is undisputed that SAD is duty of customs and is leviable on the goods which are imported and also levied as goods moving from SEZ to DTA. There is no dispute that the SAD leviable has been discharged by the appellant herein. This takes us to refund claim filed by the appellant for the said SAD Notification No.102/2007-Cus. In order to appreciate the correct position, we reproduce the notification as it stands: Exemption from special CVD to all goods imported for subsequent sale when VAT/Sales Tax paid by importer: In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the goods falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India for subsequent sale, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of importation of goods" as indicated in Notification has to be read holistically with the provisions of Section 30 of SEZ Act, which also talks about applicability and leviability of such SAD when goods imported. It would mean that when the goods move from SEZ to DTA, the leviability of SAD is on the goods arises, as such movement is considered as "when imported to India". In our view, benefit of Notification No.102/2007-Cus. cannot be denied to the appellants, for the reason that when goods move from SEZ to DTA, leviability of SAD is not in doubt, calculation of SAD is not in doubt and subsequent sale of goods is also not in doubt. The entire provisions relating to refund under Notification No.102/2007-Cus, would indicate that the Government of India had an intention to refund the amount of SAD paid by any importer, even if the goods are procured from SEZ, subject to conditions in the notification. In our view, the appellants have properly demonstrated before us that they have fulfilled the conditions of Notification No.102/2007-Cus. 13. We find for the cases in hand the observations of the Hon'ble Apex Court in the case of Industrial Suppliers Pvt. Ltd (supra) are very releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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