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TMI Blog2023 (4) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... AD) levied under Section 3 (5) of the Customs Tariff Act, 1975 for import of Information Technology Equipment covered under various Bills of Entries through Air Cargo Complex, Chennai. The refund claim was filed in terms of Notification No.102/2007 dated 14.09.2007. After due process of law, the original authority sanctioned an amount of Rs.37,98,594/- and rejected an amount of Rs.7,23,072/-. 3. The adjudicating authority had rejected part of the refund claim as above pertaining to Bills of Entry where 4% SAD was paid by the respondent on the RSP based assessed goods without claiming the benefit of exemption Notification No.29/2010 dated 27.02.2010. Thus, the original authority was of the view that the respondent being eligible to claim be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nction of refund observing that no reassessment is required as to the Bill of Entry filed in respect of goods which are also eligible for benefit of Exemption of CVD as per Notification No. 29/2010, the department is now before the Tribunal. 6. Ld. A.R Ms Anandalakshmi Ganeshram appeared and argued for the Department. It is submitted by her that, as seen from para-6 of OIO the adjudicating authority had rejected an amount of Rs.7,23,072/- on the ground that the respondent had not challenged the assessment. The respondent is eligible for the benefit of Customs Notification No.29/2010 dt. 27.02.2010 which gives full exemption with regard to the countervailing duty (CVD). Instead of availing the said exemption, the respondent has paid the CVD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification has to be availed by the importer. The said argument was considered by the Commissioner (Appeals) as noted in paras 6 & 7 of the impugned order. It is held by the Commissioner (Appeals) that if the refund claims were in order the original authority should have processed and sanctioned the refund and should not have rejected holding that the bills of entry has to be reassessed. 9. As per Notification No.102/2007 the scheme of exemption is by way of refund. The importer has to pay the duty (CVD) and then file refund claim when the goods have been sold in domestic market by paying VAT / Sales Tax. The scheme of exemption under notification No.102/2007 being in the nature of refund after payment of duty, it cannot be insisted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was not done the refund claim is premature. 11. The case before us is a refund claim filed in terms of Notification No.102/2007 wherein the scheme is of refund only after payment of duty. In other words, one of the conditions that has to be fulfilled for claiming refund under Notification No.102/2007 is that the importer has to pay the CVD at the time of import of the goods. The assessment therefore is in order and does not require reassessment. There is no excess duty paid. For these reasons, we find that the reliance placed by Ld A.R on the decisions is not applicable to the facts of the case before us. 12. As already stated, though the respondent may be eligible for benefit of CVD in terms of Notification No.29/2010, it is their opt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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