TMI Blog2017 (3) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... voice / bill issued for coil sheets. Therefore, it cannot be said that what is sold by the appellant to his client is same goods which is imported i.e. coil sheets. Under the circumstances and one of the condition of N/N. 102/2007Cus dated 14.09.2007 has not been complied with - appeal dismissed - decided against appellant. - TAX APPEAL NO. 862 of 2016 - - - Dated:- 13-2-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE APPELLANT : SHRI DEVAN PARIKH, LD. SR. ADV WITH RAJ K VYAS, ADVOCATE FOR THE RESPONDENT : MR DHAVAL D VYAS, ADVOCATE CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Feeling aggrieved and dissatisfied with the impugned Miscellaneous Order No. M/1013410137/ 2016 dated 17.03.2016 and Order No. A/1084210845/ 2014 dated 22.04.2014 passed by the Central Excise Service Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as the CESTAT ), by which, the learned Tribunal has dismissed the said appeal and Miscellaneous Application preferred by the assesseeappellant herein, the appellant has preferred present appeal with the following proposed question of law. A.Whether the Hon'ble Tribunal clearly erred in law in not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee, the assessee preferred appeal before the Commissioner of Customs (Appeals). The Commissioner of Customs (Appeal) rejected the said appeal by order dated 16.09.2011. 2.3. Against the order passed by the Commissioner of Customs (Appeals) rejecting the appeal preferred by the assessee and confirming the Order in Original disallowing the refund claim of SAD claimed by the assessee, the assessee preferred appeal before the learned Tribunal. By impugned judgment and order dated 22.04.2016, the learned Tribunal has rejected the said appeal. That thereafter, the assessee preferred Miscellaneous Application for review of the order dated 22.04.2016 before the learned Tribunal. The Miscellaneous Application has been rejected by the learned Tribunal by impugned order dated 17.03.2016. 2.4. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned CESTAT confirming the Order in Original as well as order passed by the learned Commissioner of Customs (Appeals) disallowing the refund claim of SAD claimed by the assessee, the assessee has preferred present appeal with the following proposed questions of law. A.Whether the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09.2007 can be said to have been complied with. It is submitted that therefore, the assessee is entitled to the refund on Special Additional Duty on payment of VAT on the corrugated sheets which is basically coil before corrugated. 3.3. It is further submitted by Shri Devan Parikh, learned Senior Advocate for the assessee that Special Additional Duty is imposed under the Customs Tariff Act to compensate the local taxes being levied on the very same product, if manufactured locally. It is submitted that if the VAT is payable on such coils along with other local taxes, then, Special Additional Duty is levied on the import of such coils at an estimated quantity of such tax. It is submitted that there were cases in which, the commodities imported were sold and, at the time of sale, VAT was paid thereon, which resulted into double taxation i.e. in the form of Special Additional Duty and also in the form of VAT. It is submitted that in order to avoid such double taxation that the Notification No.102/2007 Cus dated 14.09.2007 was issued. It is submitted that as per the provision of Notification dated 14.09.2007, the importer has, in the first place, to pay Special Additional Duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption of the material stated in the invoice itself. It is submitted that therefore, what is to be supplied is material as specified in the invoice. It is submitted that corrugating is a part of service on which the VAT is not required to be paid under the VAT Act. It is submitted that what is sold / what is to be sold under the contract is not corrugated piece of roof, but coil itself. It is submitted that therefore, the learned Tribunal has materially erred in observing that VAT paid by the assessee is not on the imported goods/ coils sheets but is paid on the corrugated piece of roof and therefore, as the VAT is not paid on the imported goods/ coils sheets, the assessee is not entitled to refund of SAD under the Notification dated 14.09.2007. 3.7. It is further submitted by Shri Devan Parikh, learned Senior Advocate for the assessee that that the finding recorded by the learned Tribunal that as it is not known what is the actual quantity of coils used till completion of contract work, refund is not available, is quite irrelevant to the issue on hand. 3.8. It is further submitted by Shri Devan Parikh, learned Senior Advocate for the assessee that the learned Tribunal has cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that therefore, for claiming set off/ refund of Special Additional Duty, the importer has to prove that he has paid the VAT on the very goods imported. It is submitted that in the present case it has come on record that VAT paid by the appellant is not on the imported goods but altogether a different goods, other than the goods imported. It is submitted that therefore, the conditions mentioned in the Notification No. 102/2007Cus dated 14.09.2007 are not satisfied and therefore, the appellant is rightly denied the refund of Special Additional Duty claimed under the Notification No. 102/2007Cus dated 14.09.2007. 4.2. It is further submitted by Shri Vyas, learned advocate for the Revenue that what was imported was the coil sheets, on which, the Special Additional Duty was paid at the time of import. Thereafter, what is manufactured is altogether different product i.e. Proflex Roof , on which the VAT is paid. It is submitted that therefore, as the VAT is not paid on the imported goods i.e. coil sheets, the appellant is not entitled to refund of Special Additional Duty paid on the imported goods i.e. coil sheets. 4.3. It is further submitted by Shri Vyas, learned advocate for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he imported goods with the jurisdictional customs officer; (d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be; (e) the importer shall, inter alia, provide copies of the following documents alongwith the refund claim: (i) document evidencing payment of the said additional duty; (ii) invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed; (iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods. 3 The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above, are fulfilled. 6.1. Thus, as per the aforesaid Notification, the importer has to pay first the Special Additional Duty on the goods so imported and thereafter if conditions mentioned in the said Notification are fulfilled, the importer is entitled to refund of Special Additional Duty. One of the condition is that the importer shall pay on the sale of said goods (imported goods) appropriate sales tax or value added tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the condition of Notification No. 102/2007Cus dated 14.09.2007 has not been complied with i.e. appellant has not paid VAT on the goods imported i.e. coil sheets and what is sold subsequently is Proflex Roof and what is charged by the appellant is for Proflex Roof on which the VAT has been paid and as the VAT is not paid on the coil sheets, the appellant is rightly denied the refund of Special Additional Duty claimed under the Notification No. 102/2007Cus dated 14.09.2007. 8.0. Now, so far as reliance placed upon the decision of the Division Bench of this Court in the case of Posco India Delhi Steel Processing Centre P Ltd (supra) is concerned, it is required to be noted that on facts it was observed and found that the process undertaken by the importer did not amount to manufacture and imported goods continued to retain their distinct and original character as well as identity, it was held that the importer was entitled to the benefit of Notification No. 102/2007Cus dated 14.09.2007. In the case before the Division Bench, the imported goods was the steel round logs and sold in sawn timber form. Therefore, it was found that the steel which imported was sold in the marke ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
