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2016 (2) TMI 390 - CESTAT MUMBAI

2016 (2) TMI 390 - CESTAT MUMBAI - TMI - Refund of SAD - Notification No. 102/07-Cus dated 14.9.2007 - Validity of Circular No. 18/2013-Cus dated 29.4.2013 - The said refund claims were rejected by the Assistant Commissioner on the grounds that payment of 4% SAD has not been made by cash, but has been paid using the Reward Scrip i.e. Focus Product Scheme.

The entire grounds of appeal are based on Circular issued by Board and at no stage they rely or even cited the provisions of any No .....

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AR) For the Respondent : Shri C.S. Biradar, Advocate ORDER PER: RAJU M/s Birla Furukawa Fiber Optics Ltd. imported certain goods and paid the applicable SAD on the same. Thereafter they claimed refunds of the said SAD under Notification No. 102/07-Cus dated 14.9.2007. The said refund claims were rejected by the Assistant Commissioner on the grounds that payment of 4% SAD has not been made by cash, but has been paid using the Reward Scrip i.e. Focus Product Scheme. As per the instructions given i .....

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by M/s Birla Furukawa Fiber Optics Ltd. before the Commissioner (Appeals), who allowed their appeal on the following grounds: - It is not doubted that the appellant should have taken care at the time of payment of duty to ensure that the repeated Circulars of the Board are followed and thus they could have avoided the litigation they are facing now. Notwithstanding that the substantial benefit should not be denied for procedural infraction and for other reasons discussed above. Hence, the adjudi .....

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other words, once re-credit is given, it s unilization shall be governed by the policy of the CBE&C as to how, till what further period and eve, whether utilization is allowed or not. This means, if utilization period is not extended, such refund by re-credit would be rendered infructuous and thee will not be any material benefit to the appellant as such. The appellant shall have to deal with this policy related aspect separately. 2. Revenue is now in appeal against the said order of the Co .....

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ld by charging applicable Central Sales Tax/VAT. Consequently, they become eligible for refund of SAD under the provisions of Notification No. 102/07-Cus dated 14.9.2007. The entire adjudication proceedings before original adjudicating authority are based on the interpretation of the Boards circular No. 27/2010-Cus dated 13.8.2010. The Commissioner (Appeals) has observed in his order as follows: - 5.2 I find that the adjudicating authority observed that CBEC vide Circular No. 18/2013-Cus dated .....

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adjudicating authority has not correctly construed Board s Circular 18/2013 supra. As per para 7.3 of Circular No. 6/2008-Cus dated 28.04.2008. Board had clarified that when 4% SAD was paid though DEPB scrip, refund should be allowed by way of re-credit in such scrip and not in cash. Subsequently, DGFT had issued PN No. 38/2009-2014 dated 03.02.2010 and Policy Circular No. 22/2009-14 dated 03.02.2010 which provided that Commissioner of Customs would issue a consolidated certificate showing detai .....

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sequently, Circulars Nos. 11/2011-Cus dated 24.11.2011, 30/2011-Cus dated 19.07.2011, 02/2012-Cus dated 16.01.2010, 10/2010-Cus dated 29.03.2010 and Circular No. 18/2010-Cus dated 29.04.2013 were issued periodically under which the utilization period of re-credited scrips were extended finally upto 30.09.2013. 5.4 I have also noticed that para-8 of Circular 27/2010 (supra) states that the Board is of the view that in the interest of ensuring expeditious grant of refund of 4% CVD in cash, the im .....

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. 27/2010-Customs, dated 13-08-2010 wherein it was mentioned that in the interest of ensuring expeditious grant of refund of 4% SAD, the importers may be advised to make the initial payment of 4% SAD in cash. DGFT has also informed that no re-crediting shall be done if such payment is made by means of scrips. In other words, in future exporters should pay SAD component in cash if they want a refund. 5.5 A plain reading of the aforesaid Circulars indicate that except for reiterating the view cons .....

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ssuance of the said Circular on 29.04.2013. This was added only after specifying that in the interest of ensuring expeditious grant of refund of 4% SAD, the importers may be advised to make the initial payment of 4% SAD in cash, which does not specifically preclude an importer from paying SAD from DEPB script and getting refund thereof. There could alber, be delay in getting it. I am of the view that although Circular 10/2012 dated 29.03.2012 (supra) also carried similar directions. Hence, I fin .....

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amended paragraph 2.13.2A of the Handbook of Procedures (Vol. 1), 2009-14 vide Public Notice No. 06 (RE 2013)/2009-2014 dated 18.04.2013, (cited in appeal memo) which are as under: (i) Only for the purpose of utilization of re-credit of 4% Special Additional Duty (SAD) of Customs, the freely transferable duty credit scrips (including DEPB), shall be deemed to have been revalidated till 30.09.2013 No further endorsement by the respective RA on such scrips shall be required. (ii) If the consolida .....

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s, the freely transferable duty credit scrips (including FMS), shall be deemed to have been revalidated till 30.09.2013 and hence no further endorsement by the respective RA on such scrips was required. This is procedural matter. Second part sates that certificate issued by Customs by 30.06.2013 would deemed as re-credit and thus any further reference to any RA of DGFT was not required. This does not preclude taking of credit subsequent to 30.06.2013. The provision would, on plain reading mean .....

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), should also be kept in mind. 4. The Revenue is in appeal on the ground that the order of Commissioner (Appeals) is contradictory. It is asserted that while Commissioner (Appeals) on the one hand has noted that denial of re-credit would have to be allowed where duty prior to Circular No. 18/2013-Cus dated 29.4.2013. He has allowed the appeal filed by the importer in which the duty so paid after the said circular. Secondly, the Commissioner (Appeals) has observed that if utilized period for suc .....

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decision of the Tribunal in the case of Faxtel Systems India Pvt. Ltd. Vs. Commissioner of Customs, Bangalore 2014 (299) ELT 501 (Tri-Bang). In para 3 of the said order, the Tribunal has observed as follows: - 3. The very fact that in cases where such re-credit has been allowed, parties have to file manual bills of entry according to Board would show that Board has taken this aspect into consideration. In the case of DEPB bills it may not be possible to allow to utilize the re-credit given by t .....

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oking into whether DEPB scrip has expired or not expired and thereafter it is left to the assessee/importer to go to the DGFT and get the credit and take further course of action as they deem fit. 6. Learned Counsel for the respondent relied on the decision of the Tribunal in the case of M.B. Enterprise - 2015 (317) ELT 296 (Tri-Ahmd). In para 4 of the said order, the Tribunal has observed as follows: - 4. Heard both sides and perused the case records. The issue involved in these appeals/cross o .....

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n brought on record by the Revenue that re-credit was allowed by the adjudicating authorities after 30-9-2013. It is also seen that there is no condition under Notification No. 102/2007-Cus. that SAD duty should be initially paid through cash. It has been correctly agitated by the respondents in the cross objections that a right given under an exemption notification cannot be taken away by the issue of Departmental Circulars. In view of the above observations orders passed by the first appellate .....

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