TMI Blog2021 (3) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... of SAD on the basis of Notification No.102/2007-Cus dt. 14/09/2007 which only specifies that appropriate sales tax should be paid . This issue is no more res integra and has been settled by various decisions of the Tribunal including the decision of this Tribunal in the appellant s own case VALLABHDAS AND CO. BALAKRISHNA SALES CORPORATION VERSUS COMMISSIONER OF CUSTOMS COCHIN [ 2017 (5) TMI 1371 - CESTAT BANGALORE ] wherein the Tribunal has allowed all the appeals by relying upon the earlier decisions of the Tribunal. Besides this, I find that both the authorities have wrongly relied upon the decision of the Apex Court which was in respect of Notification No. 34/1998-Cus. dated 13.06.1998. Further I find that the said Notification 34/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order-in-Original dt. 30/07/2018. Aggrieved by the partial rejection of refund claim, appellant filed appeal before the Commissioner(Appeals) who rejected the appeal. Hence the present appeal. 3. Heard both sides and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the facts and the law. He further submitted that the Assistant Commissioner while rejecting the refund claim of ₹ 76,706/- has relied upon the decision of the Supreme Court in the case of CC, Mumbai Vs. Seiko Brushware India but the said decision is in respect of Notification No.34/1998-Cus. dt. 13/06/1998 wherein the proviso disallows exemption from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998-Cus. dated 13.06.1998. Further I find that the said Notification 34/1998 has been subsequently rescinded by Notification 58/1998-Cus. dated 01.08.1998. Therefore, reliance by both the parties on a Notification which has been rescinded is not tenable in law. It is relevant to reproduce the relevant finding of the order of the Tribunal in the appellant s own case for the earlier period which is reproduced herein below: 5. We find that an identical issue came up before the Tribunal in the case of Gazal Overseas (Supra) in which the Tribunal allowed payment on refund of SAD. We reproduce below the relevant para of the decision: 4. We have considered the contention of ld. DR and also perused the refund papers. Notification No. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, so long as appropriate VAT/Sales tax was paid, SAD refund was admissible even if the appropriate sales tax/VAT was less than SAD; if the sales tax/VAT was NIL, so be it. In other words what is required in terms of the said notification is payment of appropriate sales tax/VAT regardless of the rate thereof. It logically follows that if the appropriate rate of sales tax/VAT was NIL then the appropriate sales tax/VAT paid will also be NIL. 5. In the light of the foregoing discussions, we find that the impugned order is not sustainable. Accordingly we set aside the same and allow the appeals with consequential relief, if any. 6. In view of the above decision of the Tribunal, we hold that the present issue is no more res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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