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Flextronics Technologies (India) Private Limited Versus The State of Tamil Nadu rep. by the Assistant Commissioner of Commercial Taxes

Valuation - Whether the Anti-Dumping Duty levied on the imported components and paid by a company which purchased the finished products from the petitioner herein would form part of the sale price of the goods manufactured and sold by the petitioner to such buyer under the provisions of TNVAT Act, 2006 - Petitioner located in a Special Economic Zone, enjoying exemption under Section 26 of the SEZ Act, 2005 and the goods manufactured and sold by the petitioner were cleared by the buyer by filing .....

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Economic Zone. The moment the goods got removed from out of the shelter into a Domestic Tariff Area, Section 15 of the Tamil Nadu Special Economic Zones Act and Section 30 of the Central enactment came into play. As a consequence, the anti dumping duty became payable. - The purchaser paid the same or the fact that the sale had taken place prior to the clearance of the goods, is of no consequence, since the point of first import was when the goods came to India from China. Assuming that the c .....

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me of export from China into India, but was not actually collected due to the protective cover given by the Special Economic Zones Act. The moment the goods went out of this protective cover, the duty automatically got attached to the goods and hence, the inclusion of the same in the sale price for the purpose of levy of value added tax is in order. Once anti dumping duty is levied, the same becomes part of the sale price, as otherwise the sale price of the product imported into India will be di .....

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due to wilful non disclosure of assessable turnover by the dealer. Sub-section (4) of Section 27 also deals with penalty, in relation to the reversal of input tax credit under Section 27(2). The penalty under Sub-section (4) is on a graded scale, with the rate of penalty for second and subsequent detections, higher than the rate in the case of first detection. - No finding of fact was recorded by the Assessing Officer (i) as to how he was satisfied, and (ii) as to whether there was wilful .....

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assessee to evade the taxes by adopting a device and by filing incorrect and incomplete returns. In other words, the Appellate Authority did not also address himself to the question as to whether there was wilful non disclosure or not. Unfortunately, the Tribunal also misdirected itself on this issue. Therefore, the imposition of penalty at the rate of 150% under Section 27(3)(c) of the TNVAT Act, 2006 is set aside. - Entitlement for refund claim - Tax inadvertently paid on the CVD componen .....

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wei Technologies Co. Ltd., China. This clearance was allowed to be made without payment of duty because of the location of the petitioner in a Special Economic Zone. Therefore, the petitioner is not entitled for refund of tax inadvertently paid on CVD component. - Decided partly in favour of petitioner - Tax Case Revision No. 35 of 2014 - Dated:- 18-4-2016 - V. Ramasubramanian And T. Mathivanan, JJ. For the Petitioner : Mr. C. Natarajan, Senior Counsel for Mrs.Hema Murali Krishnan For the Respon .....

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oner) formed part of the "sale price" of the goods manufactured and sold by the petitioner to the buyer under the provisions of the Tamil Nadu Value Added Tax Act, 2006? (ii) Whether on the facts and in the circumstances of the case, the learned Appellate Tribunal was correct in law in holding that tax and penalty are imposable upon the petitioner under the provisions of the Tamil Nadu Value Added Act, 2006? and (iii) Whether on the facts and in the circumstances of the case, the learn .....

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h is authorised to carry on certain operations in their unit located within the Special Economic Zone at the SIPCOT Industrial Park, Sriperumbudur, Kancheepuram District. In the course of the authorised operations, the petitioner manufactured and sold Optix OSN Series Intelligent Optical Transmission Platforms, referred to as "Optical Cabinets", to a company by name Huawei Telecommunications (India) Limited, hereinafter referred to as Huawei India, during the period from April 2010 to .....

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d Optical Components and sold them to Huawei India. The sale was subject to payment of appropriate VAT under the TNVAT Act, 2006 and Central Sales Tax Act under the CST Act, 1956. 6. The sale and supply of goods between the petitioner and Huawei India were on an "ex-works basis" in terms of a Supply Agreement dated 31.3.2010. Under Clause 3.2.2 of the Supply Agreement, the petitioner is obliged to sell and deliver the goods at the SEZ facility gate in Chennai. Thereafter, it is the obl .....

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sion equipments and sub-assemblies and components, when imported from China. The said notification was given retrospective effect from 8.12.2009, on account of the fact that a provisional levy had already been made earlier. 8. However, as the unit of the petitioner was located in the Special Economic Zone, the imported goods were not subjected to Anti-Dumping Duty at the hands of the petitioner. However, when the petitioner sold the goods manufactured in the SEZ, to Huawei India, a doubt arose a .....

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er, without any notice or intimation to the petitioner. 10. Subsequently, the Assistant Commissioner (Commercial Taxes) informed the petitioner by a letter dated 29.4.2011 that the value of Anti-Dumping Duty is to be included in the sale price, for the purpose of levy of CST under the CST Act, 1956. By another letter of the same date, the Assistant Commissioner (Commercial Tax) also issued a show cause notice proposing to compute the tax liability and also to impose penalty. 11. After the petiti .....

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or the purpose of revising the tax liability. 13. Though the petitioner submitted a letter of objection dated 30.8.2011, and also participated in the personal hearing granted on 19.9.2011, the Assessing Officer passed a revised order dated 21.10.2011 demanding tax on a price that included Anti-Dumping Duty. This revision was made on best of judgment basis. A penalty at 150% was also imposed under the revised order. 14. The petitioner filed an appeal to the first Appellate Authority. But the same .....

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company which purchased the finished products from the petitioner herein would form part of the sale price of the goods manufactured and sold by the petitioner to such buyer under the provisions of TNVAT Act, 2006. The second question relates to the validity of penalty levied upon the petitioner. The third question relates to the tax paid by the petitioner on the CVD component, and the question of its refund. Therefore if the first question is decided, the other two questions will automatically .....

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buyer by filing a Bill of Entry, indicating thereby that such a buyer is the importer and that as a consequence, he paid the Anti-Dumping Duty. 17. It is needless to point out that under Section 9A of the Customs Tariff Act, 1975, the Central Government is empowered to impose an Anti-Dumping Duty, whenever an article is exported by an exporter or producer from any country or territory, to India at less than its normal value. The dutiable event as indicated in sub-section (1) of Section 9A is the .....

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o such article." 18. What is significant to note is that any export from any country or any territory into India is covered by this sub-section. Therefore, a Special Economic Zone which is considered to be a foreign territory located within the Indian territorial limits, is also included in sub-section(1) of Section 9A. Sub-section (1) also uses the expression "upon importation of such article into India". 19. Therefore, the contention of Mr.C.Natarajan, learned senior counsel for .....

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ia from a place out side India. The word "importer" is defined in Section 2(26), to include any owner or any person holding himself out to be the importer, if such word is used in relation to goods between their importation and the time when they are cleared for home consumption. 20. Under Section 45(1) of the Customs Act, 1962, all imported goods unloaded in a customs area shall remain in the custody of a person as approved by the Commissioner of Customs, until they are cleared for ho .....

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.Natarajan, learned senior counsel for the petitioner (i) that the company which purchased the manufactured finished goods from the petitioner is identified as the importer (ii) that the act of importation of those goods into India happened after the sale of the goods by the petitioner to such person and (iii) that therefore, it was such purchaser who paid the Anti-Dumping Duty under Section 9A of the Customs Tariff Act, 1975. Hence his contention is that the Anti-Dumping Duty paid by the purcha .....

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oduct into another before it is cleared from the Special Economic Zone, no anti dumping duty is attracted. But, we do not know how this decision is applicable to the case on hand. In this case, the person who cleared the goods from the appellant's Unit in Special Economic Zone, has paid the anti dumping duty. Therefore, today there is no dispute about the liability to pay anti dumping duty. Hence, this decision is of no avail to the petitioner. 23. In support of his contention that anti dump .....

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toms duty in the sale price, (iii) decision dealing with the time of happening of the taxable event, and (iv) Decisions dealing with the inclusion of other charges in the sale price. Decisions dealing with inclusion of excise duty in the sale price 24. In McDowell & Co. Ltd. v. Commercial Tax Officer [(1985) 59 STC 277 (SC)], a Constitution Bench of the Supreme Court was dealing with a second round (true to the spirit or perhaps due to the spirit) of litigation between a licensed manufacture .....

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een paid by the holder of D2 license. On the basis of the amended provisions, the sales tax authorities again sought to include the excise duty paid directly by the buyers, in the manufacturer's turnover. The challenge made by the manufacturer was rejected by the High Court and when the matter was taken to the Supreme Court, the correctness of the decision rendered earlier by the two member Bench was doubted. Therefore, the matter was referred to a Larger Bench. The Larger Bench held that as .....

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the excise duty was paid by the buyer, it was part of the consideration for the sale and hence, includible in the turnover of the manufacturer. 25. In Mohan Breweries and Distilleries v. Commercial Tax Officer [(1997) 107 STC 212 (SC)], a three Member Bench of the Supreme Court was concerned with a question whether the excise duty on potable liquor, manufactured by Mohan Breweries, but paid by the purchasers thereof, is includible in the taxable turnover of Mohan Breweries under the Tamil Nadu .....

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e fact that it did not physically enter the manufacturer's till, was not the decisive test for determining whether or not it would be part of the manufacturer's turnover. 26. In State of Kerala v. Madras Rubber Factory [(1998) 108 STC 583 (SC)], the Supreme Court was concerned with a question whether the cess payable under the provisions of the Rubber Act, 1947, will form part of the purchase turnover of the company under the Kerala General Sales Tax Act or not. In that case, the statuto .....

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ufactured and that when it is ultimately paid by the end user, namely the manufacturer, it is implicit that the element of cess payable would be one of the factors in determining the price payable in respect thereof. 27. Mr.C.Natarajan, learned senior counsel appearing for the petitioner sought to draw a distinction between all the aforesaid three decisions of the Supreme Court (McDowell, Mohan Breweries and Madras Rubber Factory) and the case on hand, by contending that the revision petitioner .....

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three cases before the Supreme Court. 28. In order to test the correctness of the above contention, it is necessary to take a look at Sections 26 and 30 of the Special Economic Zones Act, 2005, which is a Central enactment and Sections 12 and 15 of the Tamil Nadu Special Economic Zones Act, 2005. Section 26(1) of the Central enactment and Section 12(1) of the State enactment grants exemption to every Developer and Entrepreneur located in a Special Economic Zone, from payment of any duty of cust .....

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in the rules made by the Central Government in this behalf: (a) any goods removed from a Special Economic Zone to the Domestic Tariff Area shall be chargeable to duties of customs including anti-dumping, countervailing and safeguard duties under the Customs Tariff Act, 1975, where applicable, as leviable on such goods when imported; and (b) the rate of duty and tariff valuation, if any, applicable to goods removed from a Special Economic Zone shall be at the rate and tariff valuation in force a .....

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Motor Vehicles into Local Areas Act, 1990 and the Tamil Nadu Entry of Goods into Local Areas Act, 2001 where applicable, as leviable on such goods when imported; and (b) the rate of sales tax, additional sales tax and entry tax, if any, applicable to goods removed from a Special Economic Zone shall be at the rate in force as on the date of such removal, and where such date is not ascertainable, on the date of payment of tax. 30. It could be seen from the above provisions that Clause (a) of both .....

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ng and safeguard duties, arises upon removal from the Special Economic Zone to the Domestic Tariff Area and hence, the reasoning given by the Supreme Court in Madras Rubber Factory that the liability to pay cess got attached to the rubber, would apply equally to the case on hand. 32. As a matter of fact, the liability to pay anti dumping duty arises due to the import. The revision petitioner herein is exempt from payment of the same, solely on account of the fact that they are located in a Speci .....

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e moment the goods are removed from the Special Economic Zone to the Domestic Tariff Area. The Supply Agreement that the appellant had with their purchaser, in whatever clever manner they are worded, merely shifted the burden of payment of anti dumping duty to the buyer. To put it differently, the statutory liability for payment of anti dumping duty fell upon the petitioner by virtue of the statutory scheme of the Special Economic Zones Act. The contractual liability perhaps fell upon the purcha .....

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the Supreme Court was concerned with the validity of Section 4-A of the Rajasthan Sales Tax Act, 1994, by which sales tax was leviable not on the actual price, but on the MRP of the goods declared on the package. While upholding the judgment of the Rajasthan High Court declaring Section 4-A to be unconstitutional, the Supreme Court held that a tax cannot be levied on a person unconnected with the event nor the measure or value to which rate of tax can be applied, can be altogether unconnected w .....

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igh Court was whether the customs duty paid by the dealer's customer formed part of the sale price of the imported goods for the purpose of the Bombay Sales Tax Act, 1959 and Central Sales Tax Act, 1956. On the facts of the case, the Bombay High Court found that the contract of sale therein was a CIF contract and that the customs duty was paid by the buyer after completion of the sale. In other words, on facts, the Court found that the customs duty was paid only by the buyer, that too, at a .....

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weries, the decision of the Bombay High Court in Gujarat Export Corporation would have no application to the case on hand. Moreover, the distinction between statutory liability, which is merely passed on to someone as a contractual liability, was not noted by the Bombay High Court in the said decision. Therefore, we do not think that Gujarat Export Corporation can go to the rescue of the petitioner. Decisions throwing light upon the time of happening of taxable event 36. In State Trading Corpora .....

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held that for a sale to be one in the course of import, it has to be either one which has occasioned the import or has been effected by a transfer of document of title before the goods have crossed the customs frontiers of India. After referring to the definition of the expressions "customs station", "crossing the customs frontiers of India" and "customs port" under the Customs Act, 1962, the Court held that the title to the goods had passed on to the buyer in that .....

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ia or had entered the territorial waters. But, in the case on hand, the dutiable event had actually taken place at the time when the goods were imported into India. But, the payment of the duty was exempt by virtue of the provisions of the Special Economic Zones Act. This exemption got withdrawn at the time of removal of the goods to the Domestic Tariff Area. Therefore, neither Kiran Spinning Mills nor State Trading Corporation would go to the rescue of the petitioner. 38. Reliance is also place .....

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me reason as to why Kiran Spinning Mills and State Trading Corporation cannot be invoked to the benefit of the petitioner. Decisions dealing with the inclusion of other charges in the sale price 39. In Srinivasa Timber Depot v. Deputy Commercial Tax Officer [(1969) 23 STC 158 (Mad.)], a Bench of this Court held that lot coolie charges paid on a percentage basis by the customers to the different assessees, could not form part of the turnover. This was on the ground that what could be legitimately .....

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the time of or before its delivery, which involves transfer of property. 40. Similarly, in Cauvery Sugars and Chemicals Ltd. v. Commercial Tax Officer [(1972) 29 STC 1 (Mad.)], this Court held that the cess paid on sugarcane brought into a local area specified in a notification cannot be treated as part of the turnover. But, to come to such a conclusion, the Court found on facts that as per the Madras Sugar Factories Control Act, cess did not and was not intended to form part of the consideratio .....

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not. This Court answered the question in favour of the assessee on the ground that vend fee had nothing to do with the manufacturer, but was collected for the grant of a privilege or license to sell Indian Made Foreign Spirit. 42. In Commissioner of Trade Tax, Uttaranchal v. Poltawaski TPS Power Services [(2009) 23 VST 410], the Uttaranchal High Court was concerned with the question whether the customs duty, insurance charges and port clearance charges not added to the price of the goods could .....

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of Trade Tax, Uttaranchal. These cases are not comparable to the case on hand. They deal with specific charges or items of expenditure, the levy and collection of which were governed by independent contractual or statutory provisions. Therefore, these decisions cannot go beyond what they deal with. Conclusion on the issue whether anti dumping duty would form part of the sale price 44. It should be pointed out that anti dumping duty is levied under a notification issued by the Central Government .....

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Section 9-A of the Customs Tariff Act is "where any article is exported .... to India". 45. Therefore, the fact remains that the petitioner, though located in a Special Economic Zone, is nevertheless in India, to whom a company from China has exported goods. But, the petitioner enjoyed exemption from payment of anti dumping duty only because of being located in a Special Economic Zone. This exemption was available just like a shelter so long as the goods were in the Special Economic Zo .....

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clearance of goods by the buyer of the petitioner, which happened at the gate of the Special Economic Zone is also equivalent to an import, it could be taken only to be a second incidence of import. Anti dumping duty was leviable on the first incidence of import. This is why the expression "leviable" appearing in Section 15 of the State enactment and Section 30 of the Central Special Economic Zones Act is of significance. 47. Hence, we are of the considered view that the anti dumping d .....

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pointed out by the Supreme Court in Reliance Industries Ltd. v. Designated Authority [(2006) 10 SCC 368], is to maintain a level playing field for the domestic market, with the products that are exported into India. Tracing the history of the legislation providing for anti dumping duty, it was observed in Hyundai Motors India Ltd. v. Union of India (WP No.11683 of 2014 dated 12.12.2014), by one of us (VRSJ), as follows: "20. With the glasnost or the opening up of the Indian economy in 1992 .....

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anisation. 21. By Section 9-A inserted in the Customs Tariff Act, 1975, the Parliament empowered the Central Government to impose an Anti-Dumping Duty, when an article is exported by an exporter or producer from any country or territory to India, at less than its normal value. Sub-section (1-A) of Section 9-A of the Act also empowers the Central Government to extend the anti-dumping duty to such other articles, if they find upon enquiry that a circumvention of anti-dumping duty has taken place e .....

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ing and injury, anti dumping duty is levied. The margin of dumping is the difference between the normal value, namely the price in the domestic market of the foreign exporter and the export price at which the goods are exported to India. Therefore, once anti dumping duty is levied, the same becomes part of the sale price, as otherwise the sale price of the product imported into India will be different from the sale price of the product domestically manufactured. Hence, the first question of law .....

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confusion or bona fide doubt with regard to the inclusion of an item in the sale price of a product or in the turnover, the levy of penalty should be avoided. In support of this contention, the learned senior counsel relied upon the decisions in Hindustan Steel Ltd. v. State of Orissa [(1969) 2 SCC 627], Union of India v. Rajasthan Spinning and Weaving Mills [(2009) 13 SCC 448] and Commissioner of Sales Tax v. Sanjiv Fabrics [(2010) 35 VST 1]. 51. In Hindustan Steel Ltd., the Supreme Court held .....

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t that penalty will not also be imposed merely because it is lawful to do so. 52. In Rajasthan Spinning and Weaving Mills, the Supreme Court pointed out that the issues relating to (i) recovery, (ii) interest, and (iii) penalty are dealt with in Sections 11-A, 11-AA, 11-AB and 11-AC and that penalty under Section 11-AC is a punishment for the act of deliberate deception by the assessee with intent to evade duty. Therefore, the Court held that unless there was a conscious and deliberate wrong doi .....

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taxing statute, regard must be had to (i) the object and scheme of the statute, (ii) the language of the Section, and (iii) the nature of penalty. 54. Insofar as the present case is concerned, the proceedings arose under the Tamil Nadu VAT Act, 2006. Penalty is leviable under Section 27(3), if certain conditions are satisfied. They are (i) the assessing authority should be satisfied, (ii) that the escape from the assessment was due to wilful non disclosure of assessable turnover by the dealer. .....

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hemselves sought a clarification from the Assessing Officer vide letter dated 06.9.2010. Much before this clarification was issued, the company which purchased the finished product from the revision petitioner paid the anti dumping duty. Thereafter, the Assessing Officer issued a clarification dated 29.4.2011 to the effect that anti dumping duty is to be included in the sale price. Simultaneously, a show cause notice was issued on the same date, namely 29.4.2011 and an order of assessment was pa .....

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ave been recorded by the Assessing Officer in view of the fact that the whole thing was brought to the notice of the Assessing Officer by the petitioner themselves by their letter dated 06.9.2010 seeking a clarification. 57. Before the Appellate Deputy Commissioner, the assessee raised an objection with regard to penalty. In one paragraph, the Appellate Authority held that there was a wilful intention on the part of the assessee to evade the taxes by adopting a device and by filing incorrect and .....

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UESTION-(iii) 59. The third question of law raised by the petitioner is as to whether on the facts and in the circumstances of the case, the learned Appellate Tribunal was correct in law in holding that the petitioner is not entitled to refund of tax inadvertently paid on countervailing duty discharged on the finished goods cleared from the petitioner's SEZ unit. 60. Before the first Appellate Authority, the revision petitioner raised the contention that they are entitled to refund of tax in .....

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t of the same by the assessee should not be taken advantage of by the Department to take the customs duty as part of the turnover for the levy of Value Added Tax. 62. But, the Tribunal rejected the same on the same ground as the contention relating to anti dumping duty was rejected. Hence, the third question of law. 63. But, as we have pointed out earlier, the petitioner was the actual importer of the original components. But, since the petitioner was located in a Special Economic Zone, they enj .....

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