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2016 (2) TMI 323 - CESTAT NEW DELHI

2016 (2) TMI 323 - CESTAT NEW DELHI - TMI - Refund of SAD - Notification No. 102/07-Customs dated 14.09.2007 - failure to make endorsement that “credit of duty is not admissible” - Held that:- The ratio of the LB decision in the case of Chowglue & Co. Pvt. Ltd. Vs. CC, Mumbai [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] squarely applies to the present case as in the present case, the appellant has imported finished goods for the purpose of trading. The Revenue’s contention is that the appellant is th .....

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the orders of the Commissioner of Customs (Appeals), Chennai dated 28.08.2014, 24.12.2014, 24.12.2014, and 27.02.2015. 2. The brief facts of the case are that the appellants are engaged in the manufacturer of tyres, tubes and flaps and also engaged in trading activity of tyres, tubes and flaps and importing the same. As per Notification No. 102/07-Customs dated 14.09.2007, the appellant importer is eligible for refund claim of 4% SAD subject to fulfilment of certain conditions under the said not .....

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ue & Co. Pvt. Ltd. Vs. CC, Mumbai - 2014 (306) ELT 326 (Tri.-LB), wherein it has been held that a trader-importer, who paid SAD on the imported .good and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus., notwithstanding the fact that he made no endorsement that credit of duty is not admissible on the commercial invoices. He pray .....

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im of the appellant on the ground that in terms of the amount on the invoices that of non-admissibility of cenvat credit as per the condition 2 (b) of Notification No. 102/07. We find the issue is already settled by the LB decision in the case of Chowglue & Co. Pvt. Ltd. Vs. CC, Mumbai. The relevant paragraphs of the said decision is reproduced as under:- 5.1 It would be useful and appropriate at this juncture to understand the genesis of the levy of Special Additional Duty of Customs (SAD). .....

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ditional non-modvatable levy of 8% on imports which is approximately equal to the burden of local taxes on domestic producers. This duty should not be viewed as a protectionist measure but only as a response to a legitimate demand for a level playing field. The new levy would not apply to crude oil, newsprint, capital goods sector under a special tariff regime or goods which are subjected to additional duties of excise in lieu of sales tax, gold and silver imported by passengers or other nominat .....

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d be examined and if considered appropriate notified separately. The rate of levy was subsequently reduced to 4%. All goods imported for subsequent sale were initially exempted from levy of SAD vide Sl. No. 11 of the Table Annexed to Notification No. 29/1998-Cus., dated 2-6-1998. The said exemption underwent many changes over the years and the present exemption is contained in Notification 102/2007-Cus. wherein the exemption is operationalised through a refund mechanism. Notwithstanding these ch .....

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5.2 Rule 9 of the CENVAT Credit Rules prescribes the documents on the strength of which CENVAT credit can be taken. An invoice issued by an importer is also one of the prescribed documents. However, for taking the CENVAT credit, under sub-rule (2) of the said Rule 9, following particulars are required to be indicated, namely, details of the duty or service tax payable, description of the goods or taxable service, assessable value, Central Excise or Service Tax registration number of the person .....

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s an affirmation that no credit would be available. Therefore, non-declaration/non-specification of the duty element as to its nature and quantum in the invoice issued would itself be a satisfaction of the condition prescribed under clause (b) of para 2 of the Notification 102/2007. 5.3 In the Mangalore Chemicals and Fertilizers Ltd.s case (supra), the Hon ble Apex Court observed that a distinction, between the provisions of a statute which are of a substantive character and were built-in with .....

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of the statute. As held by the Hon ble Apex Court in the New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar [AIR 1963 S.C. 1207] - it is a recognized rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the Legislature . Applying the ratio of these decisions to the facts of the case before us, it can be seen that the condition relatin .....

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