TMI Blog2004 (11) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ene (HDPE) under Bills of Entry No. 54 55 both dated 30-6-1998 under DEPB scheme and paid a sum of Rs. 6,17,138/- which included Special Additional Customs duty (SAD for short) of Rs. 55,174/-. Subsequent to the import clearance, they filed two refund claims dated 1-10-1998 claiming refund of the SAD paid under the above said two BEs under Notification No. 34/98-Cus., dated 13-6-1998 on the ground that the said Notification exempts SAD for clearances made under DEPB scheme. Notification 34/98-Cus., dated 13-6-1998 was amended by Notification 48/98-Cus., dated 17-7-1998. As it appeared to the Department that exemption from payment of SAD on the imported goods, came into effect with effect from 17-7-1998 with the issue of amending Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what are the conditions which were not fulfilled by the appellants. Hence his reasoning is not correct. (e) Notification No. 34/97 does not stipulate anything about debit of SAD in the DEPB. Therefore, the Assistant Commissioner was wrong in holding that in respect of Notification No. 34/97 the main condition is that the applicable Customs duties are to be debited from the credits available in the DEPB. 4. Shri G.D.M. Rangan, learned Counsel for the appellants reiterated the grounds mentioned in the written submission and submitted that similar case had come up before the Mumbai Bench of the Tribunal in the case of C.J. Shah Co. v. CC, Kandla reported in 2002 (141) E.L.T. 86, wherein it was held that element of Special Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxxx (xi) 34/97-Cus dated 7-4-1997." 6.1 From the above it is clear that in terms of Notification No. 34/98, exemption from SAD was allowed if the importer satisfies the condition specified in any of the 11 Notifications. These 11 Notifications included Notification No. 34/97-Cus., dated 7-4-1997 also, with which I am concerned in the present case. Notification 34/98-Cus., dated 13-6-1998 was amended by 48/98-Cus., dated 17-7-1998 by which the Sl. No. 13(xi) which is reproduced above, was deleted and the following entries were added : "All the goods falling within the First Schedule and import of such goods is covered by Notification of the Govt of India in the Ministry of Finance (Department of Revenue) No. 34/97-Cus., dated 7-4-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no such condition in the said Notification regarding debiting of SAD in the DEPB. Notification No. 34/97 speaks about debiting of basic and additional duties of Customs and it does not say anything about SAD. Further, the original authority has also not stated as to what are the conditions which were not fulfilled by the appellants. Therefore, debit of SAD is not required to be made in the DEPB, for the purpose of availing the benefit of SAD. I note that this issue is already decided in favour of the assessee by the judgment of the Tribunal in the case of C.J. Shah Co. v. CC, Kandla reported in 2002 (141) E.L.T. 86 (Tri. - Mumbai), wherein it is held that exemption under Notification No. 34/97-Cus. being restricted to basic and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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