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2015 (10) TMI 1528 - CESTAT MUMBAI

2015 (10) TMI 1528 - CESTAT MUMBAI - 2015 (325) E.L.T. 918 (Tri. - Mumbai) - Refund of SAD under Notification No. 102/07 Commissioner rejected refund of SAD under provisions of Notification No. 102/07 on ground of unjust enrichment Held that:- admitted fact that appellant have shown amount as receivable from Customs in their Balance-sheet as per certificate issued by C.A Evident from Sales Invoice that SAD has not been shown separately It is also not intention of Government to allow impo .....

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pondent : Shri M.S. Reddy, DC (AR) ORDER Per: Anil Choudhary: The appellant-assessee is in appeal aggrieved with the Order-in-Appeal No. 1298 (CRC II-B)/2014 (JNCH)/IMP-1260 dated 11.3.2014 passed by the Commissioner of Customs (Appeals), Nhava Sheva by which the refund of SAD under the provisions of Notification No. 102/07 was rejected on the ground of unjust enrichment. 2. The brief facts are that the appellant had imported consignment of certain goods by Bill of Entry dated 27.10.2011 consist .....

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in respect of the goods covered in these invoices, no credit of additional duty of customs levied'. The appellant filed claim for refund of SAD in terms of Notification No. 102/07 vide refund application dated 25.4.2013. The said claim was adjudicated vide Order-in-Original dated 25.6.2013 and the said claim was rejected on the ground of unjust enrichment, wherein it has been observed that the appellant had made declaration in the invoice that no additional duty of customs is levied and fur .....

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unt (sales price) including all taxes and freight. Accordingly, it was felt that the appellant had passed on the 4% pertaining to the SAD to the buyers and accordingly, the refund claim was rejected. 3. Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide the impugned order agreed with the findings of the adjudicating authority and upheld the Order-in-Original. Being aggrieved, the appellant is in appeal before this Tribunal. 4. The learned Counsel for the .....

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ification No. 102/07. Vide para 6 of the said Circular, the Board observed that purpose of granting exemption is to ensure that the importer pays 4% CVD (SAD) or the appropriate Sales Tax/VAT and not both. It is not the intention of the Government to allow the importer to recovery the 4% CVD from the buyer as well as to claim refund of this amount from Customs. Hence, the principle of unjust enrichment needs to be examined in each case before sanction of refund under this notification. However, .....

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