Custom, Excise & Service Tax Tribunal
Arihant Tiles &Amp; Marbles P Ltd vs Mundra on 15 June, 2018
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Zonal Bench, Ahmedabad
-ooOoo-
Appeal No.: C/10869-10870/2016
Arising out of OIO/OIA no.: MUN-CUSTM-000-APP-297-298-15-16
Arihant Tiles & Marbles Pvt. Ltd - Appellant(s)
Vs
C.C. Mundra - Respondent(s)
Represented by:
For Applicant(s) : Shri Manish Jain (Advocate) For Respondent(s) : Shri S.N. Gohil, Suptd. (A.R.) CORAM :
Shri Ramesh Nair, Hon'ble Member (Judicial) Date of Hearing/ Decision: 15.06.2018 ORDER No. A/11317-11318/2018 Per : Ramesh Nair , The issue involved in the present case is that whether the appellant is entitled for refund of SAD paid by availing exemption notification 102/2007-CUS dated 14.09.2009 in the case where the SAD was debited in the DPEB pass book not paid in cash.
2. Shri Manish Jain, Ld. Counsel appearing on behalf of the appellant submits that the issue is squarely covered by the judgement of the Delhi High Court in the case of Allen Diesels India Pvt. Ltd. Vs. UOI 2016 (334) ELT 624 (Del.). This Delhi High Court Judgement was followed by the 2 | Page C/10869-10870/2016 Tribunal in the case of CC(A) V/s Proflex system 2017 (10) TMI 1202- CESTAT. Therefore the issue is no more under dispute and the appellant is entitled for the refund in cash even though the amount of SAD was paid by debiting in the DEPB Pass Book.
3. On the other hand, Shri S.N. Gohil, Ld. Suptd. (A.R.) appearing on behalf of the Revenue reiterated the finding of the impugned order. He further submits that as per the Notification No. 34/97-Cus dated 07.04.1997 under the DEPB scheme, the duties are exempted. Once the duties are exempted and the appellant have debited in the DEBP passbook, the same cannot be given refund in cash. In support, he relies on the judgement of this Tribunal in the case of Milton Laminates Ltd. v/s Commissioner of Customs, Kandla 2006 (206) E.L.T. 797 (Tri.-Del.).
4. I have carefully considered the submission made by both side and perused the records. I find that the Hon'ble Delhi High Court dealt with the very identical issue in the case of Allen Diesels India Pvt. Ltd. (supra) which held that under notification 102/2007- Cus. even if the special edition duty was debited in the DEPB scrip, the refund should be granted in cash. The Hon'ble High Court has held the circular on this issue bearing no. 6/2008-Cus dated 28.04.2008, 10/2012- Cus dated 29.03.2012, 18/2013 dated 29.04.2013 as ultra vires to the notification no. 102/2007- Cus. In view of this Judgement, the issue is no more res integra. The Division Bench of this Tribunal following this Delhi High Court judgement also taken the same view that 4% SAD paid by using DEPB scrip at the time of this import refund should be allowed in cash. In view of the above, settled legal position, I am of the view that the appellant is entitled for a 3 | Page C/10869-10870/2016 cash refund under notification No. 102/2007- Cus even though the said amount was paid by the debiting DEPB scrip.
4. As regard the judgement cited by the Ld. AR, I find that this single Member bench judgement of this tribunal has not considered the Delhi High Court judgement. Therefore, the same stand distinguished. Regarding the submission that under DEPB duty was exempted under notification 34/97 - Cus, I find that this issue was very much dealt by the Hon'ble Delhi High Court, despite knowing that duty was exempted by way of DEPB scrip, the Hon'ble High Court has taken a view that under Notification No. 102/2007, cash refund should be given. Accordingly, I set aside the impugned order. Appeal is allowed.
(Dictated and pronounced in the open Court) (Ramesh Nair) Member (Judicial) Diksha