REDINGTON INDIA LTD. Vs. CC AIR CHENNAI

JUDGEMENT

(1.) IN this proceeding 24 appeals filed by the Revenue against different orders of the Commissioner (Appeals) passed in the case of refund of Special Additional duty of Customs (SAD for short) levied under Section 3(5) of the Customs Tariff Act, 1975, are being considered along with stay petitions filed by the Revenue and also Cross Objections filed by the respondents in certain cases. The cross objections are for supporting the arguments in the Orders -in -Appeal and no additional relief is prayed for. When the matter came up on 02.01.2014, it was seen that the Bench had already passed one Final Order in the matter and it was considered that the stay petitions and appeals and cross objections could be heard together and accordingly, both the sides were informed and the matter was finally taken up on 07.01.2014 and both the sides were heard accordingly. As already stated, the basic issue involved in all the appeals relates to refund of SAD claimed by respondents in terms of the provisions in Notification No. dated 14.09.2007. Special Additional Duty of Customs is levied under Section 3(5) of Customs Tariff Act, 1985 by issuing notification No. dated 01.03.2006 in exercise of powers under Section 3(5) of Customs Tariff Act. This duty is levied at the time of importation of goods, in lieu of Sales Tax/Value Added Tax levied by the States. There is a scheme under which the importer can claim refund of SAD paid if it is proved that after importation the goods are sold on payment of Sales Tax/Value Added Tax as applicable. The scheme is operated under Notification No. dated 14.09.2007 and the impugned refund claims were filed as per the provisions of this Notification.

(2.) THE original refund claims covered broadly two types of goods namely (i) where SAD was imposed on the goods as per the Notification No. dated 1.3.06 and for which there was no exemption from payment of such SAD. (ii) where SAD was imposed on the goods under Notification No. , but there was exemption under Notification No. dated 27.02.2010 at S. No. 1. This exemption from SAD was for pre -packaged goods intended for retail sale in relation to which it is required under the provisions of the Standards of Weight and Measurement Act, 1976 (60/1976) or the Rules made there under or under any other law for the time being in force, to declare on the package thereof the retail sale price of such goods. In cases where the goods were exempted by Notification No. , the respondents herein did not claim such exemption but instead paid duty as notified under the Notification No. , just as for goods not covered by Notification No. and later claimed refund of such SAD paid as per the provisions of Notification No. . The adjudicating authority granted refund in respect of goods not covered by the Notification 29/10 -Cus, but rejected the refund claims in respect of the goods covered by Notification No. , for the reason that allowing such refund amounted to change of assessment originally done and such a change was possible only if an appeal was filed against the orders of assessment as per the bill of entry and cannot be done through a refund claim under Notification No. In this matter, the adjudicating authority relied on the decision of the Apex Court in the case of Priya Blue Industries Vs. CC : 2004 (170) ELT 308 (S.C.). Against such orders the respondents herein filed appeals before the Commissioner (Appeals). The Commissioner (Appeals) held that these are cases where the appellants before him (respondents herein) had option to pay duty as per the provisions of Notification No. or avail the full exemption from duty under Notification No. . He relied on the following decisions namely: -

(3.) WE have heard arguments on both sides on this issue. On an earlier occasion we had occasion to consider these issues in appeal Nos. 40302 40305/13, which were disposed of vide Final Order No. 40492 40495/13 dated 23.09.2013 wherein the appeals filed by Revenue were rejected.