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TMI Blog2015 (3) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeals against the order of the Commissioner (Appeals), wherein the adjudication order was modified in so far as the rejection of that portion of refund claim pertaining to the refund of SAD for the goods which were assessed on RSP were allowed with consequential relief. 4. The respondents filed refund claims in respect of the goods assessed under RSP without availing the benefit of exemption under Notification No. 29/2010 dated 27.02.2010. We find that the Tribunal in the respondents own case by Final Order Nos. 40492 to 40495/2013 dated 23.09.2013, (Commissioner of Customs (Airport & Cargo), Chennai Vs. M/s. Westcon India Pvt. Ltd., dismissed the appeals filed by the Revenue. Further, the Tribunal by Final Order No. 40018 t 40041/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of SAD as per notification 102/07-Cus re-assessment of Bills of Entries are not prescribed under the notification. In such a situation the argument of Revenue based on the decision of the Apex Court in the case of Priya Blue Industries (Supra) is totally misplaced. 9. The only issue to be decided is whether an importer can be penalized for not having claimed exemption under Notification No. 29/2010-Cus at the time of importation by refusing to grant refund under Notification No. 102/2007-Cus, when both the notifications were in operation on the date of importation and date of claiming refund. The decisions of the courts are to the effect that an assessee cannot be forced to avail any particular exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, on 13-05-2005, the Legislature introduced the sub-section (1A) in section 5A of Central Excise Act, 1944 as already reproduced above. But no such explanation has been inserted in section 25 of Customs Act, 1962. Further in the 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. 12. Therefore we find that the appeals filed by the Revenue on the above grounds are not maintainable. 13. Before disposing of the matter finally, we note that in some cases, the adjudicating authority raised marginal issues like original documents were not filed or th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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