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TMI Blog2024 (7) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant, since the issue is similar in both the appeals, they are taken up together for disposal by this order. 2. The Commissioner (Appeals) held that as per Notification No. 29/2010-Cus. dated 27.02.2010 superseded by Notification 21/2012-Cus. dated 17.03.2012, said Notification is applicable for all pre-packaged goods (not goods in bulk) and which are intended for retail sale (not in bulk/whole sale). As per the said order, for the retail sale, price of such goods has to be declared on the packages as required under the provisions of Legal Metrology Act, 2009 and Rules made thereunder or any other law for the time being in force. Since the goods imported are falling under the category of the said goods, Appellant is not eligible to claim refund under Notification No. 102/2007 dated 14.09.2007. 3. Learned counsel for the Appellant submits that the findings given by the Adjudication/Appellate authority are unsustainable on the ground that when Notification No. 29/2010 was introduced, the existing Notification No. 102/2007 was neither withdrawn nor superseded by the new Notification. Hence, both the Notifications were available to the importer at the relevant point of time. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artered Accountant, Appellant had produced Balance Sheet for the relevant period showing SAD amount as receivables in the books of accounts. The said two facts are sufficient to prove that Appellant had not passed on the incidence of SAD to their buyers. To support the same, the Learned counsel relied on the decision of the Tribunal in the matter of M/s Krishan Enterprises Vs. CC (Import), Mumbai - 2009 (237) E.L.T. 708 (Tri.-Mumbai) and M/s Salve Pharmaceuticals Pvt. Ltd. Vs. Commissioner of C.Ex., Delhi. As regards the finding of the Commissioner (Appeals) that the reference to Article 265 of Constitution of India, it is regarding refund of levy which is found to be unconstitutional in reference to judgment of the Hon'ble Supreme Court in the matter of M/s Mafatlal Industries Ltd. In the present case, there is no dispute about the levy of SAD, duty is exempted by way of two Notifications. Hence, finding is not relevant and not maintainable. The Learned counsel also drew our attention to the decision of the Tribunal in the matter of M/s Westcon India Pvt. Ltd. (supra), wherein it is held as under: "6. Aggrieved by the order of the Commissioner (Appeals), Revenue has filed these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1944, under Section 5A, there is a specific provision introduced with effect from 13-5-2005 by way of Section 5A(1A). The said Section reads as under:- "Section 5A(1A) - For the removal of doubts, it is hereby declared that where an exemption under sub-section (1) in respect of any excisable goods from whole of the duty of excise leviable thereon has been granted absolutely, the manufacturer of such excisable goods shall not pay the duty of excise on such goods." 9. The ld. Advocate for respondent submits that there is no such provision under Section 25 of the Customs Act, 1962. When in the year 2005, the said clause was introduced in Central Excise Act, the Legislature did not consider it necessary to insert such provision in the Customs Act. Since such provision is not present in Customs Act, she submits that the importer cannot be faulted for having paid SAD without availing the exemption. She also argues that since the importer is not requesting for change of assessment made at the time of importation, the question of challenging the assessment as per Bills of Entries does not arise. The decision of the Hon'ble Supreme Court in the case of Priya Blue Industries (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Tariff Act 15.1.1 Outright exemption from additional duty of customs (of 4%) leviable under sub-section (5) of section 3 of the Customs Tariff Act, 1975 is being provided to goods imported in a pre-packaged form and intended for retail sale. The condition of the exemption is that the goods have to be such as requiring the declaration of the retail sale price either under the Standards of Weights and Measures Act or under any other law. Full exemption is also being provided to mobile phones, watches and readymade garments falling under specified headings of the Tariff. The exemption based on refunds contained in Notification No. 102/2007-Customs dated 14.09.2007 is also being retained to enable other importers to claim exemption by way of refund, if VAT is paid on the goods. Full exemption from this duty is also being provided to Carbon Black Feedstock and Waste Paper. 7. Learned AR also drew our attention to the judgment of the Hon'ble Supreme Court in the matter of ITC Ltd. Vs. CCE, Kolkata-IV - 2019 (368) E.L.T. 216 (S.C) and submits that the assessment was complete and without challenging the assessment, no refund can be made. Hon'ble Supreme Court in ITC Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, there should be no objection to deny the benefit available under the said Notification. In that view of the matter I see no reason to interfere with the findings of the Collector (Appeals). In the circumstances, the appeal is dismissed. " 9. Regarding reliance of the learned AR on the judgment of the Hon'ble Supreme Court in the matter of M/s ITC Ltd., the issue was discussed by the Hon'ble Tribunal in the matter of M/s Westcon India Pvt. Ltd. (supra), where it is categorically held that the law laid down by the Hon'ble Apex Court in the above judgment is not applicable, where importer is seeking change in assessment made at the time of importation of goods, only in such a situation, the decision of the Hon'ble Apex Court would apply. The Tribunal in the matter of M/s Westcon India Pvt. Ltd. has held as under: "10. We have considered submissions on both sides. We are of the view that this is not a case where the importer is seeking change in assessment made at the time of importation of goods. Only in such a situation, the decision of the Apex Court in Priya Blue Industries (supra) would apply. Even in such cases, the Hon'ble Delhi High Court has clarified that the said de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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