4% ACD/SAD Refund Procedures under Notification No. 102/2007 Custom
THE Customs Notification 102/2007 dated 14.9.07 providing for exemption of 4% Special Additional Customs Duty leviable in terms of Section 3(5) of Customs Tariff Act 1975 in respect of goods imported for sales as such, by the importers to others was purportedly issued to provide a level playing field to traders vis-à-vis manufacturers who do not pay local sales tax / VAT while importing goods directly for their own use and to remove the burden of double tax on such type of importers as held by Hon'ble Gujarat High Court under 2014 (299) ELT 263 (Guj.) CCE Vs. POSCO INDIA DELHI STEEL PROCESSING CENTRE P. LTD.
The exemption/procedures contained in this notification shall be given effect if the following conditions are fulfilled:
(a) the importer of the said goods shall pay all duties, including the said additional duty of customs leviable thereon, as applicable, at the time of importation of the goods;
(b) the importer, while issuing the invoice for sale of the said goods, shall specifically indicate in the invoice that in respect of the goods covered therein, no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible;
(c) the importer shall file a claim for refund of the said additional duty of customs paid on the imported goods with the jurisdictional customs officer;
(d) the importer shall pay on sale of the said goods, appropriate sales tax or value added tax, as the case may be;
(e) the importer shall, inter alia, provide copies of the following documents alongwith the refund claim :
(i) document evidencing payment of the said additional duty;
(ii) invoices of sale of the imported goods in respect of which refund of the said additional duty is claimed;
(iii) documents evidencing payment of appropriate sales tax or value added tax, as the case may be, by the importer, on sale of such imported goods.
(f) the time limit for filing refund is 1 year from payment.
The jurisdictional customs officer shall sanction the refund on satisfying himself that the conditions referred to in para 2 above, are fulfilled.
Check List of Documents:
- Form of Refund Application
- Calculation / Worksheet for refund
- Self Declaration/ undertaking
- All original challans evidencing payment of Vat with details of invoices.
- Original Charted Accountant Certificate
- Duplicate Bill of Entry (Importer's Original-Copy)
- Original TR-6 Challan for payment of Custom Duty.
- Copies of purchase invoice & bill of lading.
- List containing invoice nos. & amount of VAT/CST paid on imported goods for which refund is claimed.
- Authority Letter.
- Copy of Notification No.102/2007 Customs dated 14.09.2007
- Original VAT/CST deposited certificate issued by the VAT Department.
- Self attested photocopy of Agreement in case of High seas sales (if any).
- Self attested Duplicate/Carbon Copies of Sales Invoices (B/E No. must be mentioned on the Sales Invoices and following stamp must be their on the sales invoices)
"NO CREDIT OF THE ADDL. DUTY OF CUSTOMS LEVIED UNDER SUB SECTION (5) OF SECTION 3 OF THE CUSTOMS ACT 1975 SHALL BE ADMISSIBLE"
The procedures and clarification can also be sought from Circular No. 16/2008 Cus dated 28.04.2008 & 6/2008 Cus. dated 13.10.08. The refund is also admissible on 'DEEMED SALE' subject to satisfaction and litigation. Also, It depends upon the satisfaction of issuing authority.
(Rishi Chanan, Advocate, Mob:-098158-28244)
No Disallowance U/s. 14A r.w. Rule 8d for Investments in subsidiaries
The first issue in the appeal of the assessee relates to dis-allowance made u/s. 14A r.w.r. 8D. The Assessing Officer has made dis-allowance to the tune of Rs. 4,32,66,500/-. The contention of the assessee is that the assessee has earned dividend income of Rs. 4.6 Lakhs which is fully exempt u/s. 10(34) of the Act. The assessee has made voluntarily dis-allowance of Rs. 45,927/- u/s. 1 4A. The assessee has made fresh investments to the tune of Rs. 9.4 Crores during the year. The Assessing Officer held that the investments have been made from the fresh secured loans obtained during the year by the assessee. The CIT(Appeals) after going through the submissions made by the parties has come to the conclusion that the assessee has made investments from its own funds except for the short term investments made in HDFC Cash Management Fund and DSPML Cash Plus Fund in respect of which the amounts were invested from interest bearing funds borrowed from HBSC. The Revenue has not been able to controvert the findings of CIT(Appeals).
We are of the considered opinion that the investments made by the assessee in the subsidiary company are not on account of investment for earning capital gains or dividend income. Such investments have been made by the assessee to promote subsidiary company into the hotel industry. A perusal of the order of the CIT(Appeals) shows that out of total investment of Rs. 64,18,19,775/-, Rs. 63,31,25,715/- is invested in wholly owned subsidiary. This fact supports the case of the assessee that the assessee is not into the business of investment and the investments made by the assessee are on account of business expediency. Any dividend earned by the assessee from investment in subsidiary company is purely incidental. Therefore, the investment made by the assessee in its subsidiary are not to be reckoned for dis-allowance u/s. 14A r.w.r. 8D. The Assessing Officer is directed to re-compute the average value of investment under the provisions of Rule 8D after deleting investments made by the assessee in subsidiary company. Accordingly, this ground of appeal of the assessee is partly allowed and that of the Revenue is dismissed.
Source – EIH Associated Hotels Ltd vs. DCIT (ITAT Chennai), I.T.A. No. 15
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