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2016 (4) TMI 276 - CESTAT KOLKATA

2016 (4) TMI 276 - CESTAT KOLKATA - 2016 (344) E.L.T. 977 (Tri. - Kolkata) - Eligibility for refund of SAD when supplied/sold in DTA clearances from SEZ - Notification No.102/2007-CUS - Goods were originally imported by the appellant for use in the SEZ Unit and such imports are considered to be warehousing of goods after importation, so, the responsibility of payment of duty on such warehoused goods when cleared lies on the importer. - Held that:- as per definition of importer in Section 2( .....

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on issued under Section 25(1) of the Customs Act, 1962 the definition of importer given in Section 2(26) of the Customs Act, 1962 is required to be followed, according to which the Appellant was an importer of the goods when imported into India and paid VAT at the time of sales to DTA units. The SAD paid has not been recovered from the DTA buyers. The conditions of Notification No.102/2007-CUS are, therefore, fulfilled and the ratio laid down by the case law Adinath Trade Link v. Commissioner of .....

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th respect to Order-in-Appeal No.KOL/CUS/CKP/12/10 dated 15.01.2010, issued on 19.01.2010, passed by the Commissioner of Customs(Appeals), Kolkata. The issue involved in these proceedings is whether Appellant is eligible to the refund of SAD as per Notification No.102/2007-CUS dated 14.09.2007. 2. Shri Sukhendu Bhattachariya (Advocate) appearing on behalf of the Appellant argued that First Appellate Authority has rejected their refund claim only on the ground that Appellant is not able to show t .....

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Link vs. Commissioner of Customs, Kandla [2013 (293) ELT 746 (Tri.- Ahmd.)] decided by CESTAT, Ahmedabad. He made the Bench go through para 2, 4 and 14 of this case law to argue that SAD paid by the SEZ Unit is admissible as refund under Notification No.102/2007-CUS dated 14.09.2007. 3. Shri S.Nath, AC(AR) appearing on behalf of the Revenue argued that DTA buyer has been shown as the importer of goods in the Bills of Entry and Appellant has only acted as an agent of the importer. It was his case .....

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buyer can be considered as an importer and not the Appellant, who is the SEZ Unit. He strongly defended the Order passed by the First Appellate Authority. 4. Heard both sides and perused the case records. 5. The issue involved in the present proceedings is whether Appellant, who has supplied imported goods as SEZ Unit, is eligible to refund of SAD under Notification No.102/2007-CUS when supplied/sold in DTA clearances. The Ld.Advocate appearing on behalf of the Appellant has relied upon the case .....

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Authority allowed the Appeal filed by the department by setting aside the Orders-in-Original against which Appeal was filed to CESTAT. Following observations were made by CESTAT Ahmedabad in the relied upon case in para 12 of the case law and are reproduced below:- 12. It can be seen from the above reproduced notification that the said notification provides for exemption to be granted to the goods which are leviable to SAD at the time of importation of goods into India for subsequent sale. It ca .....

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lity of SAD is on the goods arises, as such movement is considered as when imported to India . In our view, benefit of Notification No. 102/2007-Cus. cannot be denied to the appellants, for the reason that when goods move from SEZ to DTA, leviability of SAD is not in doubt, calculation of SAD is not in doubt and subsequent sale of goods is also not in doubt. The entire provisions relating to refund under Notification No. 102/2007-Cus., would indicate that the Government of India had an intention .....

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