Whether description of goods in sale invoices and Bill of entry should be exactly same for claiming SAD refund?

PJ/Case law/2014-15/2263

Case:- COMMR. OF CUS.(SEA-EXPORT), CHENNAI v/s SHRI RAM IMPAX INDIA (P) LTD.

Citation:-2014(300) E.L.T. 126 (Tri. – Chennai)

Brief fact:-The facts of the case in brief are that the respondents imported “Tin Plate plain or misprint sheets-waste, waste/secondary” and filed refund claim of Rs. 16,17,568/- of 4% of SAD in terms of Notification no. 102/2007- CUS., dated 14-9-2009 as amended. The original authority allowed the refund claim. Revenue preferred an appeal before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) rejected the appeal filed by the revenue. Hence the revenue has come in appeal before this tribunal.

Appellant’s contentions:- The learned Authorized Representative on behalf of the revenue reiterates the grounds of appeal. He submits that one of the conditions in Notification no. 102/2007- CUS., dated 14-9-2007 is that the respondents shall produce the sale invoice of imported goods in respect of which refund of the said additional duty is claimed. It is contended that the description of goods in sale invoice and bill of entry are not tallying. It is also contended that they have not mentioned the bill of entry number in the sale invoice for the purpose of correlation of the goods. He also produced sample of the sale invoices before the bench.

Respondent’s contentions:-The learned counsel drew the attention of the bench the relevant portion of the Order-in-Appeal. He submits that there is no dispute that the sale invoice and bill of entry are related to waste and rejected material. It is also submitted that there is no condition in the notification for mentioning the Bill of entry number in the sale invoice. He submits that refund cannot be denied on such minor variations of the description of the goods in the documents.

Reasoning of judgment:- The Hon’ble tribunal find that notification no. 102/2007-Cus., dated 14-9-2007 allowed the exemption benefit of the goods imported for subsequent sale from the whole of additional duty of customs levied thereon. Para 2 of the said Notification reads as under:-
“ The exemption contained in this notification shall be given effect if the following conditions are fulfilled:-
(a)   The importer of the said goods shall pay all the duties, including the said additional duty of customs levied 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 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 importer goods with the jurisdictional customs officer;
(d) The importer shall pay on sale of the 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 along with 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.”
On perusal of the adjudication order, they find that the original authority after examining the records and conditions of the notification as mentioned above, held that the refund is admissible and also sanctioned the same. In the grounds of the appeal filed by the revenue, it is stated that the imported goods is composite mixture of “Prism, seconds/defects and waste” and the goods sold. It is also contested the authenticity of the Chartered Accountant’s certificate, payment of VAT/sales tax, etc.
One of the conditions of the said notification is that the sale invoice of the imported goods in respect of which refund of the additional duty is claimed has to be produced. In present case, the dispute relates to the variation of the description of the goods. It is revealed from the impugned order that vide Bill of entry no. 532821, dated 7-6-2010, the goods were “Tin Plate or Misprints, sheets waste/secondary and rejected” whereas in the sale invoice there is a description of “Tin sheet, W/W or sheets or “Tin plates defects”. Similarly, the description in the Bill of entry no. 534622, dated 9-6-2010 was “Tin Plate Plain or Misprints sheets- waste/waste secondary & rejected” but the sale invoice shows the description “Tin Plate Misprints sheet or Tin Plate defective”. On a query from the bench, the learned counsel submits that “Tin sheet W/W” indicates Tin sheet Waste/Waste as mentioned in the policy. It is apparent, on a plain reading of the description, that the Bill of entry indicates” waste/rejected” and sale invoice showing “waste and defects” instead of rejected, which are similar in nature. In their considered view such a difference of the description ‘rejected’ or ‘defects’ cannot disentitle the benefit of exemption notification. The other contention of the learned AR that the respondents had not mentioned the Bill of entry number in the sale invoice, they do not find any force in the submission. There is no condition in the notification that the bill of entry number should be mentioned in the sale invoice.
In the grounds of appeal, the revenue contests the authenticity and bona fide of CA certificate. It is seen from the adjudication order that Board Circular No. 16/2008- CUS., clarifies that a Chartered Accountant is, one who either certifies the claimant’s financial records under the Companies Act, 1956 or any ST/VAT Act of the State Government or the Income Tax Act, 1961, in order to fulfill the condition that the incidence of the duty burden has not been passed on to any other person. They find that Chartered Accountant’s certificate was accepted by the adjudicating authority in terms of board circular, cannot be discarded without any material and/or basis. Revenue has not placed any material and therefore, there is no force in such grounds of appeal.
In the view of the above discussion, they do not find any force in the appeal filed by the revenue. Accordingly, the appeal filed by the revenue is rejected. The order passed by the Commissioner (Appeals) is upheld.

Decision:- Appeal rejected.

Comment:- The analogy of the case is that there is no condition in notification no. 102/2007-Cus. that for claiming refund of SAD, the description of goods in sale invoice and bill of entry should be tallying and bill of entry number should be mentioned in the sale invoice. The refund claim cannot be denied on such minor variations in the description of the goods in the documents. Moreover, the Chartered Accountant’s certificate also certified that the incidence of duty burden has not been passed on to any other person and the said certificate cannot be simply rejected without appropriate evidence denying the authenticity of the said certificate.

Prepared by:- Monika Tak

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PJ/Case law/2014-15/2263

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