9911796707
TMI Blog2023 (10) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... . The said imports were assessed to duty at 5% CVD (instead of 1% CVD applicable as claimed by the appellant) in terms of Notification No. 02/2011 dated 01.03.2011. Being aggrieved by such assessment, the appellant has filed an appeal challenging the assessment order before the Hon'ble Commissioner of Customs (Appeals). The appellant contended that CVD applicable was 1% and not 5%. The appellant filed a refund claim on 10.05.2011 in respect of the BES referred above claiming that the rate of CVD should have been taken as 1% and therefore, an amount of Rs. 1,84,03,413/- paid towards CVD, Cess etc. in excess of 1% is to be refunded with interest. 4. The Deputy Commissioner of Customs vide Order (Original) NO. 80/2011(R) dated 05.12.2011 reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not extend outside India, neither will the CENVAT Credit Rules. Therefore, it is impossible for anyone outside India to avail the benefit of CENVAT credit. Therefore, in respect of imports, it is impossible that the condition of CENVAT credit not being availed is not fulfilled. This has been decided by the Hon'ble Apex Court in the case of SRF Ltd [2015 (318) ELT 607 (SC)]. We respectfully follow the ratio of the judgment of the Hon'ble Apex Court and hold that the appellant is entitled to the benefit of the exemption notifications 01/2011 & 02/2011- CE in respect of their imports. 7. Heard the parties. 8. The issue whether the import of Muriate of Potash by the appellants is chargeable to CVD at 5% or 1% is, no longer res integra in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the matter of appeals on merits as aforementioned was passed on 01.01.2019 and accordingly the appellant should have filed a fresh refund application within a period of one year, being the period of limitation prescribed under Section 27(1A)(b). Since no fresh application for refund is filed, refund has become time barred in the facts and circumstances. 12. Having considered the rival contentions, we find that, admittedly, the refund was claimed within the prescribed time but, the appeal against rejection of claim was rejected by the Court below, on the grounds that since the appeal on merits was pending before this Tribunal, it was premature. We further find that the appeal of the assessee have been finally allowed in their favour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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