2018 (5) TMI 1246 – CESTAT HYDERABAD – TMI – SAD Refund – N/N. 102/97-Cus. – Jurisdiction – refund applied before wrong officer – Held that: – Special Additional Duty (SAD) @ 4% was introduced to provide a level playing field to the domestic manufacturers who suffer VAT (which is not leviable on the imports). If the imported goods are further sold on payment of VAT, the SAD is refunded as per the notification 102/97-Cus.
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The technical fault of the assessee in applying for the refund to the wrong officer and the fault of the departmental officers in sanctioning the refund are both Revenue neutral.
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Appeal dismissed – decided against Revenue. – Appeal No. E/31339/2017 – FINAL ORDER No. A/30566/2018 – Dated:- 17-5-2018 – Hon ble Mr. P. V. Subba Rao, Member ( Technical ) Shri P.S. Reddy, Asst. Commissioner/AR for the Appellant None for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] 1. When this matter was called, nobody appeared on behalf of the respondents. The Ld.
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a certificate was not appended on the sale invoices. 3. Aggrieved, the assessee appealed before the Commissioner (Appeals) who, vide OIAs No. 36-42/2014(V-I)CE dated 10.10.2014 allowed the appeal on the ground that if goods are exempted from BCD and CVD these duties are not applicable to such goods and hence if they are not paid there is no violation of condition in Para 2 (a) of the Notification. He held that as far as condition in para 2(b) of the notification is concerned, where goods are sold on a commercial invoice, no such endorsement is required and merely not mentioning the SAD on the invoice would suffice as laid down by the Principal Bench of the Tribunal in the case of RKG International Pvt. Ltd. Vs Commissioner of C.Ex. &Cus. Noida [2013 (290)ELT 253 (Tri-Del)] and remanded it back to the Assistant Commissioner to decide the refund. The appeal of the Commissioner (Appeals) was not contested by the Department on grounds of monetary limits and therefore, has become final.
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Department that the assessee is not entitled to the SAD refund but only that it was sanctioned by an unauthorised officer and hence needs to be set aside. 5. I have heard the arguments of the Ld. DR and perused the records of the case. In this case, the only condition in dispute is that the refund application should have been filed with the jurisdictional officer of Customs. The application was filed with the wrong officer, viz., Assistant Commissioner, Vizianagaram. He could have returned the application directing it to be filed before the jurisdictional officer. Instead, he considered it on merits and passed an order rejecting it. The department appealed to Commissioner (Appeals) and it does not emerge from the OIA that the department raised this issue of jurisdiction before the Commissioner (Appeals) either. When the Commissioner (Appeals) remanded the matter back to the to the lower authority for sanction of refund, this order of the Commissioner (Appeals) was also not contested b
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