TMI Blog2021 (5) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... hall claim refund of such additional duty of customs paid on the imported goods with the jurisdictional Customs officer before expiry of one year from the date of payment of additional duty. COVID Pandemic situation - HELD THAT:- If importer imported goods in March, 2020, after lockdown due to the Pandemic Covid 19 in all over country, second wave of Pandemic and various parts of India is under locked down, if the importer failed to sell the imported goods, the importer shall be put on another burden of SAD which is otherwise entitled of refund on payment of VAT/Sales tax. Further, unless and until the goods are sold on payment of VAT/Sales tax, cause of action for refund of SAD does not arise, the said issue has not been addressed by the Division of this Tribunal in the case of C.C. -NEW DELHI (ICD TKD) (IMPORT) VERSUS AGGARWAL TRADING COMPANY [ 2018 (10) TMI 1572 - CESTAT NEW DELHI] , the same has been addressed by the Single Member Bench of this Tribunal on various occasions. In that circumstance, as there are contrary views of this Tribunal, then it would be in the interest of justice, the matter needs to be referred to the Larger Bench of this Tribunal to decide the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are contrary views of Hon ble High Courts, the Tribunal is at liberty to decide the issue ignoring the decisions of the High Court on merits. Therefore, relying on the earlier decisions in the cases of Gaio Mall and Sons vs. CC, Ludhiana2018 (10) TMI 941- CESTAT, Chandigarh, M/s. Goyal Impex Industries Limited vs. CC-2018 (9) TMI 95- CESTAT, Chennai, it was held that the refund claim filed by the appellants are within the time. 6. He also submits that Bangalore bench of this Tribunal in the case of CC, Bangalore vs. Octel Network Pvt.Ltd.-2019 (10) TMI 1158CESTAT- Bombay after noting the judgement of the Hon ble Bombay High Court in Purab Textile Pvt. Limited- 2019 (365) ELT 285 (Bom) has dismissed the appeal of the department holding in favour of the importer by following the decision of this Tribunal in the case of Gulati Sales Corporation. He also submits Delhi Bench of this Tribunal in the case CC vs. Om Traders-2019 (369) ELT 1037 (Tri.-Del.) relying upon the decision in the case of Sony India (supra) has also held that prior to the date of sale and payment of VAT, limitation cannot start to run, even if provided wrongly by Notification No.93/2008-Cus. The ld. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic interest so to do, it may, by special order in each case, exempt from payment of duty, for reasons to be stated in such order, any goods, of strategic or secret nature, or for charitable purpose, on which duty is leviable. (2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2), insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette, at any time within one year of issue of the notification under sub-section (1) or under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be. (3) An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional duty of customs leviable thereon under sub-section (5) of section 3 of the said Customs Tariff Act (hereinafter referred to as the said additional duty). 2. The exemption contained in this notification shall be given effect if the following conditions are fulfilled: (a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods; (b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible; (c) the importer shall file a claim for refund of the said additional duty of customs paid on the 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 along with the refund claim : (i) document evidencing payment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect 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. 13. Section 3 of Customs Act, 1962 reads as under: - 3. Levy of additional duty equal to excise duty . - (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Explanation. - In this sub-section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India means the excise duty for the time being in force which would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to drawbacks, refunds and exemption from duties shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act. 14. After going through the above provisions and the decision of Hon ble Apex Court in the case of CC (Preventative) vs. M. Ambalal Co. reported in 2011 (2) SCC 74. The Hon ble Supreme Court has examined the issue and observed as under: - The relevant paras of the said judgement are extracted below for the purpose to decide the issue in hand:- 10. The Customs Act, 1962 is an Act to consolidate and amend the law relating to Customs. The object of the Act is to regulate the import and export of goods, into and from the shores of India, or otherwise, and determine the customs duty payable. It also attempts to fill the lacunae of the previous customs legislations viz. the Sea Customs Act and the Land Customs Act. It also aims to counter the difficulties that have emerged over the years due to the changing economic and financial conditions; amongst them it proposes to tackle the increasing problems of smuggling both in and out of the country. The Act aims to sternly and expeditiousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be interpreted liberally. Notification No.93/2008-Cus prescribes that exemption from special CVD in specific is not available without VAT/Sales tax is paid by the importer. Further mandates notification is that SAD which has been levied on the importer is to safeguard the VATA/Sales tax is to be paid by the importer/trader at the time of sale of the goods. Therefore, if the importer sells the goods and make payment of VAT/Sales tax then the importer is entitled to claim refund of SAD paid by them at the time of import of the goods. If the goods are not sold by the importer, the importer is not entitled for refund of SAD paid by him. The importer shall claim refund of such additional duty of customs paid on the imported goods with the jurisdictional Customs officer before expiry of one year from the date of payment of additional duty. Further, the importer shall pay proper Sales tax at the time of sale of imported goods. The importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is against the intent of the Legislature. Asit is not the intent of legislature to tax double on the imported goods, the importer shall not compete Indian market.For example, if importer imported goods in March, 2020, after lockdown due to the Pandemic Covid 19 in all over country, second wave of Pandemic and various parts of India is under locked down, if the importer failed to sell the imported goods, the importer shall be put on another burden of SAD which is otherwise entitled of refund on payment of VAT/Sales tax. Further, unless and until the goods are sold on payment of VAT/Sales tax, cause of action for refund of SAD does not arise, the said issue has not been addressed by the Division of this Tribunal in the case of Aggarwal Trading Company (supra), the same has been addressed by the Single Member Bench of this Tribunal on various occasions. In that circumstance, as there are contrary views of this Tribunal, then it would be in the interest of justice, the matter needs to be referred to the Larger Bench of this Tribunal to decide the following issues: Whether the time limit prescribed for filing refund claim of SAD paid by the importer is one year in terms of Not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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