Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Law/2013-14/2014

Refund claim should not be hanged for technical lapses.

Case:-MARUTI SUZUKI INDIA LTD.  Vs COMMISSIONER OF CUS. (IMPORT), MUMBAI
 
Citation:-2013 (296) E.L.T. 100 (Tri. - Mumbai)

Brief facts:-The appeal arises from Order-in-Appeal No. 26/MCH/AC/CRARS(IMP)/2012, dated 30-1-2012 passed by the Commissioner of Customs (Appeals), New Custom House, Mumbai -I.

The appellant, M/s. Maruti Suzuki India Ltd., had imported cars under six bills of entry during the period September, 2007 to January, 2008 and had cleared the same on payment of duty including the Special Additional Duty. These were subsequently sold by them and they filed a refund claim towards the refund of SAD in terms of Notification No. 102/2007 for an amount of Rs. 1,62,02,862/-. The refund claims were examined and a deficiency memo dated 31-10-2008 was issued calling for the following documents:

(a)    Certificate from C.A. who certifies Annual Financial Account under Companies Act co-relating with payment of ST/VAT on the imported goods with invoices of sale with original tax/duty payment document as proof of payment of ST/VAT.
(b)    Invoice
(c)    Packing list
(d)    Certificate from C.A. who certifies annual account of the importer that the burden of 4% SAD has not been passed on by the importer to buyer.
(e)    Sale Invoices with stamp to state that no CENNAT credit is admissible.
(f)     Balance sheet for relevant year with auditor report & Ledger copy
(g)    Self declaration that the evidence of 4% CVD has not been passed to any other person.
(h)    Document evidencing payment of ST/VAT (In original) duly issued by or acknowledged by the concerned ST/VAT authorities.

The appellant failed to submit these documents in spite of repeated reminders and accordingly, the Assistant Commissioner passed an order rejecting the refund claim for non-submission of documents as directed by him in the deficiency memo. He also held that in the invoices issued, there was no endorsement to the effect that the buyers were not entitled to take any CENVAT credit of the SAD paid on the impugned goods which was a statutory requirement under the aforesaid Notification. He also held that the appellant had not submitted any documents evidencing the fact that the claim was not hit by the bar of unjust enrichment.

Against the impugned order the appellant preferred an appeal before the lower appellate authority and submitted all the documents in support of their claim as pointed out in the deficiency memo. However, the appellate authority dismissed the appeal on the ground that the appellant had not submitted the required documents, there was no endorsement in the invoices issued regarding non-availability of CENVAT credit of the SAD by the buyers and also no evidence had been produced for crossing the bar of unjust enrichment.
 
Appellant’s contentions:-The learned counsel for the appellant submitted that they had submitted before the appellate authority all the documents mentioned in the deficiency memo. However, the appellate authority did not consider any of those documents and had dismissed the appeal. He also admitted that in the sales invoice issued to the customers, they had not indicated the SAD amount and, therefore, the question of the buyers taking any CENVAT credit would not arise at all. It was also argued that the dealer to whom the vehicles had been sold were not registered dealers for CENVAT credit purposes. It was his submission that, if given an opportunity, they would produce all the documents before the adjudicating authority for a fresh consideration of the refund claims in accordance with law. Accordingly, he pleaded for remanding the case back to the adjudicating authority.
Respondent’s contentions:-The learned Dy. Commissioner (AR) appearing for the Revenue reiterated the findings of the lower authorities that in the invoices issued, there was no endorsement to the effect that the buyers were not entitled to take any CENVAT credit of the SAD paid on the impugned goods which was a statutory requirement under the aforesaid Notification and that the appellant had not submitted any documents evidencing the fact that the claim was not hit by the bar of unjust enrichment.
 
Reasoning of judgment:-As regards the non-endorsement of non-availability of CENVAT credit of the SAD paid on the sales invoice, in the invoice issued by the appellant, there was no mention of SAD separately and therefore, the question of buyers taking any credit would not arise at all. In a similar case, where endorsement relating to SAD was not made on the sales invoices, in respect of sales through non-registered dealers, this Tribunal vide Order No. A/58/2013/CSTB/C-I, dated 6-12-2012 in the case of Novo Nordisk India Pvt. Ltd. v. Commissioner of Customs (ACC & Import), Mumbai [2013 (292)E.L.T.252 (Tri.-Mum.)]had held that substantive benefit of exemption Notification should not be denied on the ground of procedural or technical infraction, based on the decisions of this Tribunal in the case of Equinox Solution Ltd. v. Commissioner of Customs (Import), Mumbai - 2011 (272)E.L.T.310and Commissioner of Customs, Bangalore v. Kohler India Corporation Pvt. Ltd. - 2012-TIOL-182-CESTAT-BANG. In the present case also since the goods were cars, on which CENVAT was not available and the dealers through whom the goods were sold were also not dealers registered for CENVAT credit purposes, the question of the buyers availing any CENVAT credit would not arise at all. Therefore, non-endorsement of non-availability of SAD does not materially affect the refund claims.

As regards the non-submission of other documents including those relating to unjust enrichment, the appellant had produced before the lower appellate authority, their balance sheets indicating the amount involved in the refund applications as ‘recoverable’ from the Customs and also a CA certificate that the appellant had not passed on the burden of SAD on to the buyers. From these documents enough evidence exists with regard to the appellant’s claim that they had not passed on the incidence of SAD to buyers and, therefore, the question of unjust enrichment might not arise. Nevertheless, the appellant was directed to produce before the original adjudicating authority all the documents specified in the deficiency memo and, thereafter, the original adjudicating authority shall consider the refund application afresh and decide the eligibility of the appellant to the refund.
 
Decision:-Appeal was allowed by way of remand.

Comment:-The substance of this case is that if the goods are sold to customers who are not registered dealers for CENVAT credit purposes or the goods are such on which credit cannot be taken or the amount of SAD has not been separately shown in the invoices etc., the necessity for the assessee to comply with the procedural condition of specifying the “non-availability of cenvat credit” does not arise. Therefore, the refund claim should not be withheld as far as possible for technical infractions of law when the substantial conditions for availing the refund claim have been satisfied. 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com