TMI Blog2014 (5) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... e sub-section (1A) in section 5A of Central Excise Act, 1944 - But no such explanation has been inserted in section 25 of Customs Act, 1962 - Further in case of SAD, payment at the time of importation and claiming refund at a later point of time can cause financial disadvantage to the importer and no such consequence to Revenue - Therefore, appeals filed by the Revenue on the above grounds are not maintainable – Decided in favour of Revenue. Grant of Refund – Held That:- In respect of two Bills of Entries rejected by original adjudicating authority for the reason that the goods were imported through Sea Customs, Chennai but refund claim was filed before authorities in Air Customs Chennai - The Commissioner (Appeal) noted that the refund claims were not returned promptly by the authorities in Air Customs – Relying upon CCE Vs. AIA Engineering Ltd [2012 (4) TMI 515 - CESTAT AHMEDABAD] - If the respondent file claim before the appropriate authority the claim should be processed by excluding the period for which the claims remained with Air Customs Authorities – No reason found to interfere with the order of Commissioner (A) – Decided against Revenue. - C/41267 - 41271/2013 , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption from payment of such SAD. (ii) where SAD was imposed on the goods under Notification No. 19/06-Cus., but there was exemption under Notification No. 29/10-Cus dated 27.02.2010 at S. No. 1. This exemption from SAD was for pre-packaged goods intended for retail sale in relation to which it is required under the provisions of the Standards of Weight and Measurement Act, 1976 (60/1976) 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 goods. In cases where the goods were exempted by Notification No. 29/10-Cus, the respondents herein did not claim such exemption but instead paid duty as notified under the Notification No. 19/06-Cus, just as for goods not covered by Notification No. 29/10-Cus and later claimed refund of such SAD paid as per the provisions of Notification No. 102/07-Cus. The adjudicating authority granted refund in respect of goods not covered by the Notification 29/10-Cus, but rejected the refund claims in respect of the goods covered by Notification No. 29/10-Cus, for the reason that allowing such refund amounted to change of assessment originally done and such a chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Notification No. 102/07-Cus. The refund under this Notification is always granted (even in cases not covered by Notification No. 29/2010-Cus.) much after importation and payment of SAD and no reassessment of bill of entry is being done in such cases. So the argument that in these cases reassessment has to be done is not in conformity with the practice or what is intended vide Notification No. 102/07-Cus because refund can be claimed only by producing evidence that the imported goods were sold on payment of Sales Tax/VAT as applicable. The second line of argument is that unlike under Section 5A of Central Excise Act, 1944, there is no provision under Section 25 of the Customs Act, 1962, to the effect that when goods are unconditionally exempted from duty, the importer cannot pay duty on such goods. It is also pointed out that the judicial decisions have been in favour of the central excise assessees and importers holding that when two notifications were operative for the same goods at the same time each manufacturer or importer, as the case may be, can avail the notification, which is considered to be suitable by each. After such decisions by the Court, an amendment was made unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und. 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 10. 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 conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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