Custom, Excise & Service Tax Tribunal
Cc (Airport & Cargo), Chennai vs M/S. Westcon India Pvt. Ltd on 5 August, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
C/S/41974 41975/2013 in C/42115 42116/2013
(Arising out of Order-in-Appeal Nos. 1034 & 1035/2013 dated 26.07.2013, passed by the Commissioner of Customs (Airport & Air Cargo), Chennai).
For approval and signature
Honble Shri P.K. DAS, Judicial Member
Honble Shri R. PERIASAMI, Technical Member
_______________________________________________________
1. Whether Press Reporters may be allowed to see the : No
order for Publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair : Seen
copy of the Order.
4. Whether order is to be circulated to the : Yes
Departmental Authorities? _______________________________________________________
CC (Airport & Cargo), Chennai : Appellants
Vs.
1. M/s. Westcon India Pvt. Ltd. : Respondents
2. M/s. Dimension Data India Ltd.
Appearance Shri M. Rammohan Rao, DC (AR) for the appellant Ms. V. Pramila, Adv., for the respondent CORAM Honble Shri P.K. DAS, Judicial Member Honble Shri R. PERIASAMI, Technical Member Date of Hearing : 05.08.2014 Date of Decision: 05.08.2014 FINAL ORDER No. 40604-40605 / 2014 Per: P.K. Das, Common issue involved in these appeals and therefore both are taken up together for disposal.
2. After hearing both the sides, we find that the appeals may be decided at the stage of stay petition hearing. Accordingly, after disposing the stay petitions, we take up the appeals for hearing.
3. Revenue filed these appeals against the order of the Commissioner (Appeals), wherein the adjudication order was modified in so far as the rejection of that portion of refund claim pertaining to the refund of SAD for the goods which were assessed on RSP were allowed with consequential relief.
4. The respondents filed refund claims in respect of the goods assessed under RSP without availing the benefit of exemption under Notification No. 29/2010 dated 27.02.2010. We find that the Tribunal in the respondents own case by Final Order Nos. 40492 to 40495/2013 dated 23.09.2013, (Commissioner of Customs (Airport & Cargo), Chennai Vs. M/s. Westcon India Pvt. Ltd., dismissed the appeals filed by the Revenue. Further, the Tribunal by Final Order No. 40018 t 40041/2014 dated 07.01.2014, dismissed a batch of appeals filed by the Revenue (Commissioner of Customs (Airport & Cargo), Chennai Vs. M/s. Redington India Ltd. and others. For the purpose of proper appreciation, the relevant portion of the final order dated 07.01.14 (M/s. Redington India Ltd.,) is reproduced as under:-
7. 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 Honble Delhi High Court has clarified that the said decision would apply only in a case where there was a dispute between the Department and the importer at the time of importation of the goods and the matter was adjudicated either through assessment of BE or through further proceedings. Where there was no lis at the time of importation, the Delhi High Court held in the case of Aman Medicals Products Ltd. Vs. CC 2010 (250) E.L.T. 30 (Del.) that provisions under Section 27 of the Customs Act, 1962 for refund can be made use of for claiming duty erroneously paid without challenging the original assessment.
8. In this case, the refund is not claimed under section 27 of the Customs Act. The appellant is not requesting for change of the assessment made at the time of importation. For grant of refund of SAD as per notification 102/07-Cus re-assessment of Bills of Entries are not prescribed under the notification. In such a situation the argument of Revenue based on the decision of the Apex Court in the case of Priya Blue Industries (Supra) is totally misplaced.
9. The only issue to be decided is whether an importer can be penalized for not having claimed exemption under Notification No. 29/2010-Cus at the time of importation by refusing to grant refund under Notification No. 102/2007-Cus, when both the notifications were in operation on the date of importation and date of claiming refund. The decisions of the courts are to the effect that an assessee cannot be forced to avail any particular exemption. The following decisions are relevant:-
(i) CCE Vs. Narayan Polyplast-2005 (179) E.L.T. 20 (S.C.)
(ii) Reliance Industries Ltd. v. CCE, Ahmedabad -
2003 (152) E.L.T. 423 (Tri.-Mumbai)
(iii) Mafatlal Industries Ltd. v. CCE, Vadodara 2003 (162) E.L.T. 1143 (Tri- Mumbai) Maintained in 2005 (179) ELT 276 (Supreme Court)
(iv) Pankaj Petropack Pvt. Ltd. v. CCE, Vadodara - 2002 (143) E.L.T. 600 (Tri.- Mumbai) Maintained in 2005 (179) ELT 276 (Supreme Court)
(v) CCE, Jaipur v. Global Overseas - 2005 (192) E.L.T. 334 (Tri. - Del.)
(vi) Nikita Transphase Adducts Pvt. Ltd. Vs. CCE-
2007 (7) S.T.R. 182 (Tri. Mumbai
10. These decisions were in the context of Central Excise duty. In the case of Central Excise duty there is a consequence in paying duty on exempted goods because the assessee will be able to pass on the duty incidence on the raw material and capital goods to the next stage by paying duty whereas such incidence cannot be passed on if the goods are exempted. Thus there is an adverse consequence to revenue when excise duty is paid on an exempted product.
11. Against the back ground of such decisions of Courts and Tribunal, on 13-05-2005, the Legislature introduced the sub-section (1A) in section 5A of Central Excise Act, 1944 as already reproduced above. But no such explanation has been inserted in section 25 of Customs Act, 1962. Further in the case of SAD, payment at the time of importation and claiming refund at a later point of time can cause financial disadvantage to the importer and no such consequence to Revenue.
12. Therefore we find that the appeals filed by the Revenue on the above grounds are not maintainable.
13. Before disposing of the matter finally, we note that in some cases, the adjudicating authority raised marginal issues like original documents were not filed or that the invoices for sale of the goods were raised on the day of import or prior to that etc. In those cases, the Commissioner (Appeals) has given appropriate directions and the Revenue is not in appeal on those issues. Therefore, we are not making any observation on those issues. However in Appeal No.41326/2013 with HCL Infosystems Ltd. as respondent refund in respect of two Bills of Entries were rejected by original adjudicating authority for the reason that the goods were imported through Sea Customs, Chennai but refund claim was filed before authorities in Air Customs Chennai. The Commissioner (Appeal) noted that the refund claims were not returned promptly by the authorities in Air Customs. Then he relied on decision in CCE Vs. AIA Engineering Ltd reported in 2011 (21) STR (Guj) and directed that if the respondent file claim before the appropriate authority the claim should be processed by excluding the period for which the claims remained with Air Customs Authorities. Revenue is aggrieved by this order of the Commissioner (Appeal). We have considered this matter. In view of the decision as cited by Commissioner (Appeal) we do not find any reason to interfere with the order of Commissioner (Appeal) on this issue.
14. In view of the above decisions and discussions, the appeals filed by the Revenue are rejected by upholding the orders of the Commissioner (Appeals). The stay petitions and cross objections also get disposed of as above.
5. In view of the above discussions and following the Tribunals earlier order, we dismiss the appeals filed by the Revenue and uphold the order passed by the Commissioner. Stay applications are disposed of.
(Order dictated and pronounced in the open Court)
(R. PERIASAMI) (P.K. DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
BB
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