TMI Blog2013 (11) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment 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. - C/S/40251 to 40254/2013 and C/CO/40770 to 40773/2013 and C/40302 to 40305/2013 - Final Order Nos. 40492-40495/2013 - Dated:- 23-9-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant : Shri M. Rammohan Rao, DC (AR) For the Respondent : Smt. Pramila Viswanathan, Advocate JUDGEMENT Per Mathew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 258/2012 16.5.2012 8,65,405/- {28,134/- against 3 B/Es and 8,37,271/- against 18 B/Es 1. Mismatch of description between the bills of entry and the sales invoices. 2. Without challenging the order of assessment 4. The main ground on which refunds were denied by adjudicating authority in all the cases is that the importer claimed refund without challenging the order of assessment as per Bills of Entries. Here it is relevant to mention that the importer had imported electronic goods like networking equipment, paid SAD as notified under notification 19/2006-Cus. dated 1.3.2006 at the time of import and claimed refund of SAD so paid, as per provisions of Notification No. 102/2007-Cus dated 14.9.2007. There was another notification namely Notification No.29/2010-Cus. dated 27.10.2010 (Sl. No. 1) which provided exemption from SAD for all pre-packed goods intended for retail sale in relation to which it is required, under the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) or the rules made there under or under any other law for the time being in force, to declare on the package thereof the retail sale price of such art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the refund claims were rejected fall under the category of bill of entry description of the goods do not tally with the sales invoices; the imported goods sold prior to the date of importation or on the date of importation without possessing the physical ownership of the goods. The appellant on the mis-match of the description of the goods in the bill of entry vis-`-vis the local sales invoices has stated that details were presented along with appeal to show the tally of the imported goods with the local sales invoice, but I don t find any such details. As regards the observation of the LAA that the local sales invoice was dated prior to the Bill of Entry date, the appellant has stated that the goods accompanied the sales invoice which is not convincing, the criteria should be date of invoice only. There can be no infirmity in the rejection of the above claims by the lower authority. However, since no opportunity was given to them to put forth their submissions before rejection, as pointed out by the appellants, there is clearly a case of non-adherence to the principles of natural justice. 9. In view of the above discussions, the LAA s impugned orders are set aside to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the only difference is that there was Notification No. 29/2010-Cus which the importer could have availed. The importer did not avail the said exemption. According to the Ld Advocate, there is nothing in the Customs Act, 1962 which compels an importer to avail an exemption provided by any particular notification. She points out that in the Central Excise Act, 1944, under Section 5A, there is a specific provision introduced with effect from 13.5.2005 by way of Section 5A(1A). The said Section reads as under:- Section 5A(1A) -For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods. 9. The Ld Advocate for respondent submits that there is no such provision under Section 25 of the Customs Act, 1962. When in the year 2005, the said clause was introduced in Central Excise Act, the legislature did not consider it necessary to insert such provision in the Customs Act. Since such provision is not present in Customs Act, she submits that the importer can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aiming refund. The decisions of the courts are to the effect that an assessee cannot be forced to avail any particular exemption. The following decisions are relevant:- (i) CCE Vs. Narayan Polyplast-2005 (179) E.L.T. 20 (S.C.) (ii) Reliance Industries Ltd. v. CCE, Ahmedabad - 2003 (152) E.L.T. 423 (Tri.-Mumbai) (iii) Mafatlal Industries Ltd. v. CCE, Vadodara - 2003 (162) E.L.T. 1143 (Tri- Mumbai) Maintained in 2005 (179) ELT 276 (Supreme Court) (iv) Pankaj Petropack Pvt. Ltd. v. CCE, Vadodara - 2002 (143) E.L.T. 600 (Tri.- Mumbai) Maintained in 2005 (179) ELT 276 (Supreme Court) (v) CCE, Jaipur v. Global Overseas - 2005 (192) E.L.T. 334 (Tri. - Del.) (vi) Nikita Transphase Adducts Pvt. Ltd.Vs. CCE-2007 (7) S.T.R. 182 (Tri. - Mumbai 13. These decisions were in the context of Central Excise duty. 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 exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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